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THE GIFT OF 

MAY TREAT MORRISON 

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THE CITIZEN'S LIBRARY 

OF 

ECONOMICS, POLITICS, AND 
SOCIOLOGY 

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PROFESSOR OF POLITICAL ECONOMY, 
UNIVERSITY OF WISCONSIN 



SOME ETHICAL GAINS 
THROUGH LEGISLATION 



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POLITICS, AND SOCIOLOGY 

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THE CITIZEN'S LIBRARY 



Some Ethical Gains 
1 hrough Legislation 



BY 

FLORENCE KELLEY 

GENERAL SECRETARY 
OF THE NATIONAL CONSUMERS LEAGUE 



il5tto Porfe 

THE MACMILLAN COMPANY 

LONDON: MACMILLAN & CO., Ltd. 
1905 

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PREFACE 

The substance of this vohime has grown out of 
the writer's experience as special agent for the 
Bureau of Labor Statistics of Illinois for an inves- 
tigation of the needle-trades in the tenements of 
Chicago, in 1892 ; as Chief Inspector of Factories of 
that state from 1893 to 1897; as agent in charge of 
the Chicago division of the investigation of the 
"Slums of Great Cities" for the Department of La- 
bor at Washington; and as Secretary of the Na- 
tional Consumers' League from 1899 to the date of 
publication; but chiefly as a resident for thirteen 
years beginning in 1892, first at Hull-House in 
Chicago and afterward at the Nurses' Settlement 
in New York. Lest it seem strange that one of 
the laity should discuss statutes and the decisions 
of courts of last resort, it may be well to state that 
the writer has for many years been a member of the 
bar of Illinois. 

The subject matter has been presented in part to 
the students of several universities and colleges ; and 
published, also in part, in the Annals of the Ameri- 
can Academy of Political and Social Science, the 
American Journal of Sociology, the Chautauquan 
and Charities, to which acknowledgment is due for 
courteous permission to reprint. Thanks are due 
also to the West Publishing Company for the text 



PREFACE 

of decisions ; and to patient friends whose searching 
criticism has led to many modifications both of sub- 
stance and form. 

While the present volume was in press, Mayor 
Dunne of Chicago appointed to the Board of Ed- 
ucation of that city, Miss Jane Addams of Hull- 
House, Airs. Emmons Blaine and Dr. Cornelia De 
Bey. It remains to be seen how far these able and 
public spirited citizens may disprove the argument 
advanced in chapter V. 

That portion of this book which is of permanent 
value is to be found in the appendices. These are 
commended to the careful attention of the reader 
because, without a full understanding of the judicial 
decisions thus brought together, it is impossible to 
comprehend the difficulties which have been over- 
come in the sadly incomplete process of freeing the 
conscience of the purchasing public from participa- 
tion in gross industrial evils ; and to estimate justly 
the obstacles which still beset the path of the grow- 
ing body of citizens of the Republic who elect to 
pursue this discouraging yet indispensable line of 
civic duty, the permanent establishment of ethical 
gains through legislation. 

FLORENCE KELLEY. 

New York, September, 1905. 



CONTENTS 



CHAPTER I 
The Right to Childhood .... 

Young Children Working in Tenement Houses 
Young Children in Domestic Work 
Children in Street Occupations 
Telegraph and Messenger Boys 
Children in Retail Trade 
Children in IManufacture 
The Glass Bottle Industry . 

CHAPTER n 
The Child, the State, and the Nation 

Consequences of Recognition of the Child's Right 
to Exemption from Work . . . . 
Inter-State Aspect of the Right to Childhood 
Legislation Needed in the Near Future 
A United States Commission for Children 

CHAPTER III 

The Right to Leisure 

The Unsought Leisure of Prosperous Women 
Enforced Idleness is not Leisure 
Increased Speed Calls for Leisure 
Methods of Establishing the Right to Leisure 

CHAPTER IV 
Judicial Interpretations of the Right to Leisure . 
The Right to Leisure Accorded to Public Servants 
The Right to Leisure of Wage-Earning Women 
and Children .... 



The Illinois Decision of 1895 (Ritchie vs. 
People) ...... 

The Right to Leisure of Workingmen 
Trade Agreements and Statutes 



The 



3 

6 

8 

II 

15 
26 

33 
43 

58 

66 
81 
91 
99 

105 
112 
116 
120 
125 

127 
128 

132 

139 
145 
i6s 



CONTENTS 

CHAPTER V 

The Right or Women to the Ballot . . .172 

Women's Opportunities on Public Boards and 

Commissions . . . . . . .173 

Need of Women in Educational Work . . 178 
Protection of Children in Colorado . . . 190 
Advantages of the Recognition of the Right of 

Women to the Ballot IQS 

Right of Women to a Share in the Enactment of 

Marriage and Divorce Laws . . . 206 

CHAPTER VI 

The Rights of Purchasers 209 

Ignorance of Conditions of Production . . 212 

Some Typical Purchasers .... 216 

Efforts to Enlighten Purchasers . . . 220 

CHAPTER VII 

The Rights of Purchasers, and the Courts . . 229 

The New York Decision of 1884 (In re Jacobs) . 230 
The Development and Attempted Regulation of 

the Sweating System .... 235 

Trade Unions and the Union Label . . . 240 

Ethical Loss Through Lack of Legislation . . 245 

APPENDIX I 
Canton Cotton AIills vs. Edwards, Supreme Court 

OF Georgia, June 10, 1904 .... 256 

APPENDIX II 
Ritchie vs. The People, Supreme Court of Illinois, 

March 14, 1895 259 

APPENDIX III 
Holden vs. Hardy, Supreme Court of the United 

States, February 28, 1898 .... 280 

APPENDIX IV 
In re Jacobs, Court of Appeals of New York, Janu- 
ary 20, 1885 306 

APPENDIX V 
Pure Food Bill 325 



SOME ETHICAL GAINS 
THROUGH LEGISLATION 



CHAPTER I " ■ " 

THE RIGHT TO CHILDHOOD 

It is no part of the aim of this chapter to prove 
that the right to childhood exists. That right fol- 
lows from the existence of the Republic and must 
be guarded in order to guard its life which must 
perish if it should ever cease to be replenished by 
generations of patriots, who can be secured on no 
other terms than the full recognition of the need of 
long-cherished, carefully nurtured childhood for all 
the future citizens. 

The purpose of this chapter is simply to indicate 
certain instances in which, the right to childhood 
having been recognized, an ethical gain has been 
achieved, and farther gains may be accomplished. 

The noblest duty of the Republic is that of self- 
preservation by so cherishing all its children that 
they, in turn, may become enlightened self-govern- 
ing citizens. The children of to-day are potentially 
the Republic of 1930. As they are cherished and 
trained, so will it live or languish a generation 
hence. The care and nurture of childhood is thus a 
vital concern of the nation. For if children perish 
in infancy they are obviously lost to the Republic as 
citizens. If, surviving infancy, children are per- 
mitted to deteriorate into criminals, they are bad 

3 



SOME ETHICAL GAINS 

citizens ; if they are left illiterate, if they are over- 
worked and devitalized in body and mind, the Re- 
public suflfers the penalty of every offense against 
childhood.'^ '■•,.'';■:■ 

An unfailing test of the ethical standards of a 
community is the question, "What citizens are be- 
ing trained here?" 

Where young children die by thousands, the eth- 
ical standards of the community are, so far, bad. 
For science has long shown how to minimize infant 
mortality. The failure of a community to follow 
the teachings of science in this direction is a moral 
dereliction of the gravest character. The death 
from preventable disease of thousands of young 
children in the tenement houses of the city of New 
York, occurring year after year, from generation to 
generation, stamps the ethical standards of the me- 
tropolis as bad beyond belief. For the exposure of 
infants on the highways of China is not more obvi- 
ous to the people of China, than the preventable 
mortality of infants in New York City has for years 
been obvious to the people of the United States. It 
is, moreover, one of the incredible things of our 
civilization that this excessive infant mortality, from 
generation to generation, is left to local boards of 
health and to local philanthropies, whose inability to 
cope with it its persistence has long conspicuously 
proved. 

The legislation of the last few years, intended to 
secure improved housing for the people of New 
York City, although it is still wholly inadequate, 
constitutes one of the fundamental ethical gains of 

4 



THE RIGHT TO CHILDHOOD 

our e^eneratipn. For it marks the beginning- of that 
social protection of infant life without which the 
right to childhood is illusory ; and for w^ant of which 
thousands of potential citizens in the great cities 
have, within the last half century, been lost to the 
Republic. 

It would seem at first glance to be a universally 
acknowlcdgetl right of the human being to receive 
during the first months of life food, clothing, shelter 
and nurture without even passive cooperation on its 
own part beyond swallowing food, wearing clothing 
and sleeping in a quiet, warm, clean place. Yet 
within one generation it has been necessary to en- 
force with fines and imprisonment, statutes and or- 
dinances for the purpose of stopping large numbers 
of infants less than one year old from being used to 
contribute to the income of their owners by being 
exposed in the arms of begging women upon the 
streets of the great cities. The colder the night and 
the later the hour, the more overwhelming the ap- 
peal to the pity of the passer-by and the greater the 
pecuniary value to its owner (not by any means 
always its mother), of such an instrument for secur- 
ing income. 

Before the enactment of the statute which put an 
end in New York City to this misuse of infants, a 
belief was current that, if the public should cease to 
contribute to their support, starvation might be the 
alternative for both woman and child. But women 
and infants do not starve in New York. The sup- 
pression of this exploitation of infants is a clear gain 
for tlie moral sense of the community, not only be- 

5 



SOME ETHICAL GAINS 

cause the lives and health of the babies are pro- 
tected, but because a perverted and unwholesome 
outlet for unreasoning pity is cut off, and a higher 
form of reasonable care for childhood is substituted 
therefor. 

Followingjbabyhood, the years from the first to 
the seventh birthday are so far held sacred to sleep, 
play and rapid growth that most states exempt chil- 
dren during this period from compulsory attendance 
at school. The belief is generally held, that the 
strain of school life is excessive for the health and 
welfare of so many children at this age as to make 
compulsion of doubtful public benefit. 

Young Children working in Tenement Houses. 
— Yet, in the spring of 1903, a kindergartner in 
New York City, on missing from her class an 
Italian brother and sister aged four and five years, 
and visiting them in their homes^was told by their 
mother that they could not be spared from their 
work to go to the kindergartens They were en- 
gaged in wrapping colored paper around pieces of 
wire, to form the stems of artificial flowers which 
the family manufactured in their tenement home, 
the older sisters making the leaves and petals, and 
the other members of the group forming whole 
flowers and sprays. 

The children were pointed out to the attendance 
agent who explained that, even under the statute of 
1903, the compulsory attendance law exempted the 
younger child for three years and the older for two, 
assuming that each would then enter school on 
reaching the seventh birthday. The factory in- 

6 



THE RIGHT TO CHILDHOOD 

spector, when the facts were hrought to his atten- 
tion, observed that the case did not appear to consti- 
tute a violation of tlie factory law, since the children 
were not receivin^^ wages, and the group at work 
did not exceed the number authorized under the 
license to manufacture artificial flowers in their ten- 
ement home. 

The question then arose whether such employ- 
ment constituted cruelty under the statutes of New 
York. The danger attending taking the children 
and their parents into court upon a charge of cruelty 
was, that it might be found that this parental ex- 
ploitation of young children within the home did 
not technically constitute cruelty in the judicial 
sense ; and such a decision might then be construed 
by the colony of artificial flower makers as approval 
of similar employment of small children upon a 
scale even larger than at present. Or, such employ- 
ment might be held to constitute cruelty, the chil- 
dren might be removed from the custody of their 
parents and sent, perhaps at the cost of the city, to 
one of the subsidized sectarian institutions, and a 
whole new series of hardships thus caused, not less 
grave than those already suffered by the children. 

Such exploitation of very young children within 
the family circle is practised whenever manufacture 
in tenements is tolerated. These children are types 
of employees in New York, Chicago, Philadelphia, 
and all other cities in which tenement dwellings are 
turned into workshops. This form of domestic 
overwork of little children can be eliminated by the 
effective prohibition of manufacture in the tene- 

7 



SOME ETHICAL GAINS 

ments (a measure sure to be enacted within a few 
years in the interest of the public health) and in no 
other way. Until this prohibition is enacted and 
enforced, there will be, wherever the needle-trades 
and other industries are carried on in homes, vir- 
tually no lowest limit above the age of three years 
for the employment of children in families. For 
children can pull out basting threads, sew on but- 
tons, paste boxes and labels, strip tobacco and per- 
form a multitude of simple manipulations as readily 
as they can learn the kindergarten occupations. 

In Boston, the rigorous enforcement of the licens- 
ing-laws applied to homework has partially re- 
stricted this form of exploitation of young children ; 
and has revealed the interesting fact that the ethical 
standard of the people of Massachusetts is higher in 
two important respects than that attained by other 
manufacturing communities. 'For the yomig chil- 
dren are incomparably better protected against do- 
mestic overwork by the partial restriction of manu- 
facture in homes; and the officials appointed to 
watch over tenement-house manufacture are the 
only ones in the United States who know from ten 
years of experience that they are in no danger of 
being removed from office because of faithful per- 
formance of their arduous and often dangerous 
work. 

Young Children in Domestic Work. — Far more 
difficult to reach by statute is the oppression of little 
girls under the burden of household drudgery at 
cost of school attendance. The Little Mothers' As- 
sociation registers one of the bitter ironies of child 

8 



THE RIGHT TO CHILDHOOD 

life in New York City. The girls whose dreary 
lives it cheers are under the legal age for working 
for wages. Many of them attend school just 
enough to save their parents from the penalties at- 
taching to keeping a truant in the family, but so 
irregularly that progress with the class is impossible 
and school life is one long discouragement. For 
these children, whose exploitation is largely due to 
sheer parental shiftlessness and selfishness, that new 
provision must in the long run prove a godsend 
which now requires a child before beginning to 
work for wages, to show that it has completed the 
curriculum of the first five years of the public 
schools and has, within the last preceding school- 
year, attended school one hundred and thirty days. 
This measure places a premium, in the shape of 
wage-earning capacity at the fourteenth birthday, 
upon steady progress in school and, therefore, upon 
regular attendance. When this fact penetrates the 
minds of the parents, the "little mothers" will doubt- 
less find less opposition at home to their efforts to 
escape from the baby, the washtub, and the scrub- 
bing brush, and to take refuge in the schoolroom. 

The statute thus reenforces parental duty and 
stays the pressure of drudgery upon defenseless 
children within the family. Unfortunately, it is too 
slight and indirect. The "little mothers" need di- 
rect help and protection almost as much as the tiny 
makers of artificial flowers in the tenements. The 
next step might well be the adoption of an objective 
standard applied to the child herself. If it were 
required that a girl must weigh eighty pounds and 

9 



SOME ETHICAL GAINS 

measure sixty inches in height, the test to be made 
with scales and measuring rod in the school, besides 
being able to read fluently and write legibly in the 
English language, before leaving school, the danger 
of oppression of little girls within the family circle 
would be greatly reduced. 

No modern community recognizes the old patria 
pofestas, the Roman right of the father to put his 
child to death. But in the intimate circle of family 
life there lingers deeply rooted the belief in the 
right of either parent to exploit childhood for 
money, or for personal relief from work by the sub- 
stitution of the child in the performance of domestic 
tasks. And the public conscience is slower to rec- 
ognize the need of intervention in this than in any 
other form of cruelty. 

With the statutory prolongation of childhood in 
the form of child labor laws, there emerges the need 
of assuring to the children the practical benefit due 
them with their legal immunity from work. In the 
Republic, childhood must be sacred to preparation 
for citizenship. Hence the public schools offer in- 
struction in the interest of the community. But for 
the children here under discussion, mere offering is 
not enough. There must be compulsion incarnate 
in the attendance agent. Through this official the 
community enters the home, as it enters the work- 
shop, the store and the factory, to enforce upon the 
adult the child's claim to this high privilege. There 
is no longer discussion with the parent as to the ad- 
vantage to himself accruing from the education of 

10 



THE RIGHT TO CHILDHOOD 

his child. ' The child's right has been recognized 
and made a part of the life of the community. 

This process of defending the child, by reason oi 
its future citizenship, from ignorance imposed by 
the greed or thoughtlessness of parents has, since 
1903, gone farther in the State of New York than 
in any previous year or any other state. For in 
New York, under the statute of 1903, a child must 
not only reach the fourteenth birthday and the 
normal stature of a child of that age (so certified by 
a special officer of the board of health appointed for 
the purpose) before beginning work in manufacture 
or commerce ; it must also have been instructed in 
reading, writing, spelling, English grammar and 
geography, together with the fundamental opera- 
tions of arithmetic including fractions, and must 
show that it can read fluently and write legibly in 
the English language. 

An unforeseen and welcome result of this provi- 
sion is the immediate discovery on the part of many 
Italian and Russian immigrant families that it is no 
longer profitable to import half-grown and illiterate 
young relatives from Europe ; since such young 
importations now require about two years of steady 
attendance at school before they can be made pe- 
cuniarily profitable to their importers. Thus one of 
the ugliest growths of the padrone system of immi- 
gration is quite incidentally cut off at the root by 
the statutory protection of children from work 
while they remain illiterate. 

Children in Street Occupations. — Within com- 
paratively few years, little girls offered violets for 



SOME ETHICAL GAINS 

sale in the streets of New York as they still offer in 
the streets of many cities flowers, pencils, chewing 
gum and other small articles. Thoughtless persons 
encouraged them with gifts as well as purchases, 
assuming perhaps starvation as the alternative to 
this ruinous employment. Now, happily, the penal 
code prohibits under heavy penalty all employment 
of this kind for girls under the age of sixteen years. 
In the interest of morals and decency, self-support 
by street-peddling is forbidden to girls six years 
longer than newspaper-selling is prohibited to their 
brothers, although the recent investigation of the 
New York Child Labor Committee justifies the be- 
lief that a similar prohibition, on the same grounds, 
is no less needed for boys. 

Among American cities, Boston, New York and 
Buffalo are dealing systematically with very young 
children working as newsboys. In all three cities 
attempts are made to eliminate newsboys under the 
age of ten years. Merely to state this would seem 
to justify the effort and suggest farther restriction. 
Yet, in 1903, a representative of the New York 
Society for the Prevention of Cruelty to Children 
appeared before the Senate committee sitting at 
Albany, and protested against the enactment of a 
measure which proposed to go one useful step 
farther and extend the prohibition of street selling 
to the twelfth birthday. 

In many cities, tiny newsboys may be seen on the 
streets at any hour of the day or night. Wherever 
the subject has not been closed by a prohibitive 
statute, that perverted reasoning is still widely ac- 

12 



THE RIGHT TO CHILDHOOD 

cepted which assumes, quite without foundation for 
the assumption, a widowed mother or a disabled 
father for every such diminutive worker, and un- 
hesitatingly places the burden of the decrepit adult's 
maintenance upon the slender shoulders of the child. 
Over against the prevalence of this unfounded as- 
sumption, the sweeping prohibition of street work 
for children under the age of ten years registers a 
distinct ethical gain. It restores the burden of sup- 
port in early childhood to the parents or to the com- 
munity where it properly belongs. 

A case arising in New York City under the 
"newsboy law" illustrates the point. A child was 
arrested charged with offering to sell papers with- 
out wearing the badge required by law. He was 
nine years and six months old. On the following 
day several newspapers printed headlines of which 
the following is typical : "Tiny Breadwinner ar- 
rested for Selling Papers." Investigation showed 
the father to have deserted his family, the mother to 
have become insane, and the three children to have 
fallen into the direst need. Thanks to the "newsboy 
law," immediate attention was drawn to them, the 
mother was taken to a hospital, the children were 
provided with homes, and the search for the absent 
father was begun. Without the law, what would 
have befallen the family? And what would be the 
ethical standard of a community which allowed the 
support of a family consisting of an insane woman, 
a child younger than himself, and an infant, to de- 
volve upon a boy of nine years ? 

For more than one generation, it has been almost 
13 



SOME ETHICAL GAINS 

invariably assumed that there must be little news- 
boys, and that they must be objects of charity. The 
two facts, that they are regarded with surprise and 
disapproval by European visitors who investigate 
our educational theories and practise, and that the 
street trades uniformly contribute a wholly undue 
share to the population of our reformatories and 
industrial, truant and parental schools, have been 
ignored. 

There have been newsboys' homes, lodging- 
houses, banks, and clubs ; newsboys' picnics, public 
dinners, treats and even, from time to time, a theat- 
rical performance for newsboys. The simple device 
of prohibiting the work of tiny children and making 
the privilege of selling papers on the streets, out of 
school hours, depend upon the good behavior and 
regular attendance of the candidate at school, reg- 
isters a marked gain in reasonable kindness of the 
communities which have entered upon this humane 
course of action. 

The boys in New York, Boston and Buffalo, who 
wear badges, indicating their right to sell papers, 
are now school boys authorized by their parents and 
the board of education to work, out of school hours, 
until ten o'clock at night. Every one of them is 
vouched for by a parent or guardian whose name 
and address is known to the board of education. 
There are no waifs or strays among them. They 
are not legitimate objects of pity or of charity. 
They are school boys in good standing. Just in 
proportion as the newsboy law is enforced, can a 
cheerful answer safely be given concerning them 

14 



THE RIGHT TO CHILDHOOD 

to the question, "What kind of citizens are being 
trained here?" 

In these three cities, the next step will doubtless 
be taken in the direction of raising the age for begin- 
ning work to twelve years and restricting the work- 
ing day to the hours between seven in the morning 
and seven at night. Ten o'clock at night is too late 
for children under the age of fourteen years to be 
at work upon the streets, and the law of Illinois 
demonstrates that seven o'clock is a feasible limit 
for the work of children under sixteen years in 
manufacture and commerce. Surely it is not too 
narrow a limit for children under fourteen working 
in the streets. 

Telegraph and Messenger Boys. — A similar 
gain is greatly to be coveted for the telegraph and 
messenger boys who share with the newsboys the 
life of the streets and who have long been sur- 
rounded by the same sort of glamour in the public 
mind. Carrying messages, like selling papers, has 
seemed to the employing companies and to the 
thoughtless public to be "boys' work," as distin- 
guished from men's work, because boys can do it, 
and because they can be obtained more cheaply than 
men. 

The test of the work, however, should be not 
whether boys can do it, but what it does to boys. 
Many occupations are injurious to children almost 
in proportion as they seem, from the commercial 
point of view, fitted to the abilities of children. To 
twist colored paper around pieces of wire in the 
manufacture of artificial flowers is within the power 

IS 



SOME ETHICAL GAINS 

of a child of four years. And the labor of such 
children can be obtained virtually gratis by the em- 
ployer under the system of manufacture in tene- 
ment-houses. This portion of the work seems, 
therefore, to the employer to be properly "children's 
work" not "women's work." But to be kept 
steadily at work at that simple manipulation is ruin- 
ous for the body and mind of a young child, and, in 
the interest of the children viewed as future citi- 
zens, is to be utterly condemned and prohibited. In 
the same way, a girl of ten years can carry a baby 
in her arms, scrub a floor, and wash plain garments 
quite clean. But the girl who does nothing, all day 
long, day after day, but hold a heavy baby and carry 
it up and down stairs in a tenement-house ; or who 
habitually lifts baskets of clothing, or kneels on a 
damp floor, gets off easily if she escapes lifelong 
curvature of the spine, or serious internal disorder, 
or tuberculosis, that blight of the working children. 

So the very out-of-door variety and facility of 
the work of the messenger contributes to make the 
work unfit for young lads, almost in proportion as 
their youth, spryness and readiness to work for 
small wages make them appear to the employing 
company and the uncritical observer especially 
adapted to the occupation. 

Granted that one messenger or telegraph boy 
in a great city may have risen to a post of responsi- 
bility just as one newsboy in a thousand may have 
risen to distinction or to fortune, the public mind 
has been far too ready to assume the carriere 
ouverte aux talents for all these children ; and sadly 

i6 



THE RIGHT TO CHILDHOOD 

slow to perceive the truth which the juvenile courts 
are now revealing, that like the newsboys the mes- 
senger boys have long furnished a large contingent 
to the population of the truant-schools, the parental 
schools, and the reformatories. 

Every judge of a juvenile court, at an early stage 
of his experience with delinquent boys, becomes im- 
pressed with the unfitness of work upon the streets 
as messengers and telegraph deliverers, for children. 
A judge told the writer that one-third of all the de- 
linquent boys brought before him had, at one time 
or another, served the public as messenger boys. 
He regarded this as the most injurious, from the 
point of view of morals, of all the occupations open 
to children. Every reformatory institution which 
keeps adequate records of the previous history of 
the boys committed to its care, can shed a flood of 
light upon the demoralization of lads due to this 
service upon the streets. 

The attention of the writer was first drawn to the 
injurious character of this occupation for young 
boys by the experience of a lad who was taken into 
service as a messenger in the morning and was sent, 
at noon, to the post-office with $170 to buy stamps 
for a great mail-order establishment. Intoxicated 
by the possession of a sum greater than he had seen 
in all his life with its meager supplies of money, the 
boy showed the notes to another lad upon the street, 
who suggested that instead of going to the post- 
office, the messenger should go to the races. To- 
gether they spent the afternoon betting at the race- 
tracks. The following morning the messenger 
2 17 



SOME ETHICAL GAINS 

passed from the ranks of the working children, in 
which he had been enrolled for one ruinous day, to 
those of the juvenile criminals recorded in the 
county jail. 

The temptation involved in handling precious 
possessions not his own besets the messenger boy 
throughout his career. And the contact with dis- 
reputable people is not confined to chance acquaint- 
ances upon the streets, but inheres in the work itself, 
thousands of messages to such persons of both sexes 
being delivered every year by young lads who are 
constantly sent, in the way of business, to places of 
the existence of which more fortunate children are 
carefully kept in ignorance. The judge who pre- 
sides over a justly famous juvenile court told the 
writer that in his opinion two-thirds of the messages 
delivered after eight o'clock at night in his city were 
carried by children to places of bad character.^ Ac- 
cording to the penal code of New York messenger 
boys may be sent to the door of places to which no 
other child can be sent without involving the sender 
in the danger of criminal prosecution. Surely cyn- 
icism can go no farther than this ! 

All the circumstances attending the work of tele- 
graph and messenger service render it especially 

' One of the curiosities of legislation is that provision of the 
penal code of New York which reads as follows : Penal Code 
— Sec. 292a (Laws 1893, Ch. 692) : "A corporation or person 
employing messenger boys who knowingly sends or permits 
any person to send any messenger boy to any disorderly house, 
unlicensed saloon, inn, tavern or other unlicensed place, where 
malt or spiritous liquors or wines are sold, on any errand or 
business whatsoever, except to deliver telegrams at the door 
of such house, is guilty of a misdemeanor, and incurs a penalty 
of fifty dollars, to be recovered by the district attorney." 

18 



THE RIGHT TO CHILDHOOD 

unfit for young, growing- boys. The irregular 
hours, and the still more irregular meals, picked up 
in the intervals of message serving and consisting 
commonly of bread or cake with the vilest coffee, 
contribute to sapped vitality and broken health. 
Such meals foster the craving which seems univer- 
sal among workers upon the streets, for cigarettes 
and liquor. The incessant temptation to overcharge 
is in turn enhanced by the longing for these stimu- 
lants. The temptation to purloin money and to 
overcharge makes thieves of hundreds of children. 
The ease with which overcharges may be collected 
and the relative safety from detection sap the habit 
of honesty in nearly all messenger boys. The 
writer has had wide experience of working boys and 
has never known a messenger who did not, sooner 
or later, succumb to the temptation to overcharge. 
How completely a matter of course it is in the minds 
of the children, was shown by a boy who came to the 
head of a settlement in Xcw York to ask her, in all 
simplicity, to help in getting him restored to the 
Lower East Side, whence he had been recently 
transferred to a district of offices in Broadway, 
where everyone, even the office boy, knows the 
tariff of charges for delivering messages. Among 
the women of the foreign colonies he had been able 
to overcharge at discretion. After being trans- 
ferred, these illicit gains were cut off and he felt 
himself aggrieved by the reduction of his receipts, 
and set promptly and frankly about securing his 
restoration to the field of his former dishonesties, 
which it never occurred to him either to conceal or 
deny, ig 



SOME ETHICAL GAINS 

It is one of the ironies of our treatment of our 
future citizens that all the disadvantages of the mes- 
senger service are intensified at the Christmas holi- 
day season. Work is brisker, inexperienced chil- 
dren are taken on, bundles are larger and heavier 
and correspondingly more wearisome to carry than 
at other times. Or they may be smaller, more 
precious and, therefore, more tempting to purloin. 
Waiting at the doors of dwellings is trying in the 
cold of Christmas days ; servants are apt to be slow 
because of the unusual demands upon them ; the 
contrast between the comfort, perhaps the splendor, 
of the interiors seen by glimpses and the meager 
surroundings and celebration at home — all these 
things make the Christmas experiences of the mes- 
senger boys bitter rather than cheering. On the 
other hand, people in general are inclined to be 
more confiding than usual ; overcharging is easier, 
the fear of detection is even remoter than at other 
seasons. 

All the foregoing disadvantages attach to the 
night service with even greater force than to the 
work by day. After 7 p. m. the work of the mes- 
senger service and telegraph delivery is peculiarly 
unfit for children and should be performed by men, 
never by minors ; least of all by boys between the 
ages of ten and sixteen years. Yet it is these young 
lads who constitute the rank and file of the service 
at the present time ; many of them only nominally 
fourteen years old while really much younger. 

One evening, as the writer was leaving home to go 
to the railway station to take a midnight train, a 

20 



THE RIGHT TO CHILDHOOD 

boy eleven years of age brought a telegram for a 
member of the family announcing the successful 
performance of a surgical operation upon a relative 
in a distant city. As the boy's route to the office 
involved passing the station, the writer suggested 
walking together. In the course of the conversa- 
tion the boy said: "She didn't take on at all about 
her message, that woman didn't. The last message 
I carried was to a laundry and the girl was the 
cashier. When she seen her message she fell clean 
off the stool on the floor in a fit. Her mother was 
dead and no previous notice." He referred to him- 
self as one of the "death-message squad" and ex- 
plained that between up. m. and 5 a. m. the mes- 
sages sent out from the office in which he was em- 
ployed were chiefly "death-messages" and "come 
immediatelies." On reaching the station, just 
before midnight, this child of eleven years said 
good-night and continued his walk across the Chi- 
cago River to one of the worst and most notorious 
regions of the Levee in which the office was con- 
veniently located. 

The stirring opportunities afforded by the life of 
the streets for boys at the age of the keenest thirst 
for adventure, together with the absence of personal 
oversight, conspire to lure the messengers to com- 
mit minor offenses. All these considerations taken 
together have effectually convinced students of the 
child-labor problem that the messenger and tele- 
graph delivery service rank among the boy destroy- 
ing occupations. Yet one telegraph company in 
the United States is probably the largest single em- 



SOME ETHICAL GAINS 

ployer of boys in the world, having had on its pay- 
roll in New York City alone, in 1902, 6,000 boys 
in order to keep its daily working force at 2,000 
boys. 

Let us assume that, in spite of all its disadvan- 
tages, some rare boy survived a long term of em- 
ployment in the telegraph and messenger service 
and emerged with digestion unhurt by irregular 
meals and coffee drinking; nerves sound in spite 
of lost sleep and cigarette-smoking; character 
untainted by evil companionship and the over- 
whelming temptation to dishonesty. What has 
such a boy to show for the years he has spent in 
delivering messages? He has no trade, no craft, 
no skill of any kind, no discipline of mind or body 
to fit him for rising in any direction. The irregu- 
larity of his work has unfitted him for any sustained 
effort when he has passed the age for accepting 
children's wages. One of the problems of the set- 
tlements is to find work for boys who have out- 
grown the messenger's uniform. The lads have 
learned nothing which is of any value to them 
There is no versatility in them which might make 
them desirable employees in the hobble-de-hoy age. 
Their eagerness to make a record of speed and 
promptness has all oozed away. They are no 
longer dazzled at the prospect of earning $4.00 a 
week. They know most- exactly the purchasing 
power of the wages they are likely to receive, and 
balancing the fatigue and exertion against the pay, 
they simply sit still and wait for something to turn 
up, rather better pleased if nothing can be found 



THE RIGHT TO CHILDHOOD 

for them to do. Not every boy is morally ruined 
by this work ; but the earlier he enters upon it, and 
the longer he remains in it, the greater the proba- 
bility of his ruin. 

Every consideration adverse to the employment 
of boys as messengers holds with added weight 
against the employment of girls. On grounds of 
health the exposure to all sorts of weather is even 
worse for girls than for boys. Carrying heavy 
packages is most injurious for girls, and this is one 
of the purposes for which messengers are fre- 
quently called. Exposure to contact with all sorts 
of people is, if possible, worse for girls than for 
boys, and most undesirable for both. From the 
point of view of health and morals the employment 
of boys is sufficiently bad ; and in the opinion of 
those who are best qualified to judge, should be 
discouraged in favor of the employment of men. 

It is reported that President Eliot once notified 
the Harvard Square office of the Western Union 
Telegraph Company that the rule of the college 
must be observed which forbids women without 
escort to visit the dormitories. The occasion of 
this notice was the experiment which this company 
had been making in several places, Cambridge 
among the number, with employing girls instead of 
boys as messengers. As most of the business of 
the Harvard Square office is done with students, 
the experiment at that point was immediately aban- 
doned. Everywhere, the consumer can do what 
President Eliot is reported to have done, namely, 
make the conditions upon which the companies can 

23 



SOME ETHICAL GAINS 

retain the patronage and custom essential to their 
business. To do this, however, the customers must 
act in large numbers. It is because President Eliot 
speaks for hundreds of patrons that his decision is 
final for the company. It rests with the friends 
of the children to urge upon the general public the 
feasibiHty of selecting the kind of messengers to 
be employed. Certain business offices in New York 
City are already doing this. They have notified 
the local messenger service that small boys will not 
be accepted, messages and packages will not be 
entrusted to them. To these customers, the com- 
panies send only large boys. In the same way, per- 
sons who telephone calls for messengers, can, by 
taking thought, stipulate for a large boy. It is 
particularly important to do this at night. 

When a sufficient number of persons register 
public opinion in this and other practical ways, the 
tiny messenger boys will disappear from the streets 
of the cities as the infants misused for begging pur- 
poses, the shivering little girls offering violets for 
sale, and the baby newsboys, have vanished from 
the streets of New York City. Legislation was 
required to banish each one of these groups of little 
victims of the streets, and before legislation could 
be enacted, and enforced, public opinion had to be 
educated. The future citizen most in need of vig- 
orous enforcement of existing statutes and of stren- 
uous public and private protest against his present 
way of life, is the little messenger boy. On no one 
does the denial of the right to childhood act more 
cruelly than upon him. 

24 



THE RIGHT TO CHILDHOOD 

Hitherto, only initial steps have been taken in 
the direction of legislation. Ohio prohibits the 
employment of boys under sixteen years of age, 
and of girls under eighteen, after 7 p. m. But the 
law is not, in general, well enforced, and the writer 
has seen young boys and has heard upon trust- 
worthy authority of young girls being employed, 
in that state, late at night. Illinois prohibits the 
employment of boys and girls alike after the hour of 
7 p. M. In New York State the enforcement of 
the law for the protection of the messenger and tel- 
egraph boys is, unfortunately, left to the local 
boards of health, and the statute is, therefore, 
largely nugatory. 

With the effort to secure better statutory protec- 
tion of the children, there should be a general move- 
ment for the employment of men in these capacities. 
Why should telegrams, messages and packages be 
entrusted to persons of less efficiency than the letter 
carriers employed by the government of the United 
States? Letters are usually less urgent than tele- 
grams, less valuable than packages. Why, then, 
should the public consent to be worse served in the 
delivery of telegrams, messages and packages than 
of letters? Even in the delivery of letters, chil- 
dren are sometimes employed by the United States 
post-ofitices, indirectly through contracts with the 
messenger companies, which send out pitifully 
small boys at all hours of the night to carry letters 
bearing special delivery stamps. It is a perverse 
practise which here also entrusts the especially 
urgent letter to a bearer of less than the ordinary 

25 



SOME ETHICAL GAINS 

trustworthiness, a practise against which the HveH- 
est protest might well be made wherever it occurs. 

Wherever there is a one-armed man out of em- 
ployment who possesses the other qualifications for 
the messenger service now ordinarily offered by 
children, the advantage to the community derivable 
from giving the opportunity for a livelihood to 
such an unfortunate is so obvious that it would 
doubtless be admitted by everyone. The need here, 
however, goes much farther than this, embracing 
the employment of sound men as well as of one- 
armed men, in the interest incidentally of the effi- 
cient service of the community, but primarily in the 
interest of the children, the future citizens whom 
the Republic cannot permit to be sacrificed in the 
performance of tasks intrinsically unfit for child- 
hood. 

Children in Retail Trade. — Boys who enter 
upon employment in retail trade at the age of four- 
teen years, are at the foot of the ladder of com- 
merce upon which some of them will rise to compe- 
tence and success. In New York such boys must 
have attended school one hundred and thirty days 
during the last preceding school year, must have 
received instruction in reading, writing, spelling, 
geography and English grammar. They must be 
familiar with the fundamental operations of arith- 
metic, including fractions. They must not only 
prove themselves fourteen years of age by produc- 
ing a birth or baptismal certificate, but must be of 
the normal development of children of that age and 
in good health, in the opinion of the examiner of 

26 



THE RIGHT TO CHILDHOOD 

the board of health, who issues the certificates with- 
out which they cannot be legally employed. Their 
working day is limited to nine hours and must be 
arranged to end not later than ten o'clock at night. 
Boys who meet these requirements but have not yet 
completed the work of the first eight grades of the 
public school, must attend night-school six hours 
a week during sixteen weeks each year until the six- 
teenth birthday, unless the curriculum is meanwhile 
completed. 

This is believed to be the most enlightened statute 
yet enacted for the protection of boys entering upon 
employment in commerce ; and so far as the issu- 
ance of certificates is concerned, it has been admin- 
istered conscientiously and effectively. During the 
months of October and November, 1903, approxi- 
mately 2,000 children who applied to the board of 
health of New York City for certificates were 
refused them, either because they could not prove 
that they w^ere fourteen years of age, or because 
they did not meet the educational requirements. 
Unfortunately, there is as yet no appropriation 
made by the city for the salaries of mercantile 
inspectors to enforce the law by following the chil- 
dren into the stores frequently and regularly. 
Since, however, the names and addresses of the 
children, with the statement whether or not papers 
have been issued, are forwarded by the board of 
health to the school officials, the lack of mercantile 
inspectors is in part compensated for by the search 
made by the school authorities for children thus 
shown to be out of school. 

27 



SOME ETHICAL GAINS 

It is probable that there is a close connection 
between the unusually high wages paid to children 
in retail trade in New York and the restrictions 
upon their work, both being in excess of the wages 
and restrictions common elsewhere. Children of 
the grade of intelligence here described are worth 
better pay than younger, more ignorant children; 
and when they meet all the requirements of the law 
and have their papers in order, they are at a certain 
slight premium compared with children of the same 
age in communities where the workers are left sub- 
ject to the unrestricted competition of younger chil- 
dren. 

On the other hand, such restrictive legislation 
tends to stimulate the use of systems of mechanical 
cash-carrying; for the higher wages of the pro- 
tected children are worth saving. This is clear 
gain for the merchant, the children and the com- 
munity ; for the work of cash-children is the least 
desirable of all the phases of retail trade. The act 
of carrying cash is in itself a gross temptation, 
sharply accented by the suddenness of the child's 
transition from the meager possessions of the tene- 
ment-house family life to the bewildering richness 
of a great store. The amounts pilfered by chil- 
dren are usually so trivial that it is rarely thought 
worth while for the employer to prosecute the 
ofifender. A child who has been guilty of petty 
thieving is usually dismissed and replaced by an- 
other. But in the life of the tenements and the 
stores nothing is hidden ; and on the following day 
all his associates know what has happened and the 

28 



THE RIGHT TO CHILDHOOD 

brand of the thief is upon the offender. Every 
reduction in the number of children required for 
the performance of this work is, therefore, a gain 
for the morals of the working children. 

The best measures yet enacted for the protection 
vof girls m retail trade are wholly inadequate. The 
law above described as applying to boys in New 
York applies to girls also, except that girls are not 
required to attend night school. But this is not 
enough. In the interest of the public health and 
morals there is quite as good ground for prohibit- 
ing the employment of girls under the age of six- 
teen years in retail trade as in peddling in the 
streets. Girls cannot be kept in the close air of 
stores eight or more hours a day, without suffering 
a loss of that vitality which it is one of their most 
important functions during the years between ten 
and sixteen to store up for the uses of motherhood 
later on. The disadvantages arising from confine- 
ment in close air increase in proportion as growing 
girls are kept standing, or are subjected to crowd- 
ing and excitement. 

Girls are, of course, subjected to exactly the same 
temptations to pilfering as boys. Moreover, they 
are more at the mercy of the men under whose 
direction they work. An immoral floorwalker or 
head of a department possesses appalling power for 
evil over the lives of the girls who are subject to 
his direction. The public at large enjoys the free- 
dom of every city store ; and the position of little 
girls offering violets to all passers on the streets, 
is essentially not very different from that of the 

29 



SOME ETHICAL GAINS 

young employees in retail trade. There is also en- 
forced association with older employees who may 
or may not be of good character, and the readiness 
of girls at the most impressionable age to adopt the 
tone of the more striking among their older associ- 
ates. Finally, there is for young girls none of the 
steadying influence that arises for boys out of the 
prospect of moving upward in the line of promotion. 
For girls the work which they perform before the 
sixteenth birthday is usually a makeshift for the 
sake of the immediate weekly wage which they earn 
at quite as great risk to their future as the messen- 
ger boys. On behalf of the girls under the age of 
sixteen years employed in retail trade only the most 
adverse reply can be given to the question, "What 
kind of citizens are being trained here?" 

Meanwhile, pending the enactment of a measure 
which shall place retail trade in the same category 
as street peddling for girls under the age of sixteen 
years, the shortening of the hours of work by the 
statutes of 1903 in New York and Illinois marks a 
substantial gain. 

So far as they are enforced, they will make an 
end of such spectacular cruelty as the writer wit- 
nessed, in December, 1902, a few weeks before their 
enactment. Returning late at night from the long 
rehearsal of the Musical Arts Society, at Carnegie 
Hall, some ten days before Christmas, and forced 
to wait for a car at Broadway and Grand street, she 
found there at eleven o'clock a dozen little girls, 
between ten and fourteen years of age. They 
proved to be neighbors and eagerly poured forth 

30 



THE RIGHT TO CHILDHOOD 

the story of their day. They had reported for work 
at 7:30 in the morning, the stores opening at eight 
o'clock. They had had scant time for kincheon, 
and worked again until supper time. Then, in one 
store they were given ten cents each and in another 
store a meal ticket. Several meal tickets proved 
worthless because there was nothing left to eat at 
the late hour at which the children were allowed to 
stop working. After supper, all had worked again 
until ten o'clock when they had been sent home. 
After waiting half an hour for a car, it was pro- 
posed to walk home together ; but one little girl sat 
down on the curb stone, crying and saying that she 
could not walk, if she never reached home. The 
others stayed with her in the cold of December with 
midnight approaching, little victims of the cruelty 
that, year after year, travesties the Christmas sea- 
son. 

A boy well known to the writer described as fol- 
lows his experience of the shortened working- 
hours: "I fill a bin with packages, ready for the 
driver to put on his wagon. I begin at seven and 
work all day. A wagon goes out at eight in the 
evening. Then I fill my bin for the driver to put 
in his wagon, ready for the morning, the first trip. 
I stay by the bin until ten, waiting for the last par- 
cels bought just before closing time to come down 
to me. When the store closes at six, the last of 
these come down by ten. Then I can go home. 
When the store used to be open until eight I went 
home at midnight. When it was open until ten, 
I went home at two in the morning. But when I 

31 



SOME ETHICAL GAINS 

am ready to go home, the little gatherers come 
around, gathering up paper, string, broken toys, 
and all the rubbish that accumulates on the floor in 
the holiday rush. When the gatherers have fin- 
ished, the scrubbers come along and clean the floors, 
and the gatherers generally go home about the same 
time as the scrubbers, two hours later than I go 
home." 

Henceforth, no child under the age of sixteen 
years can be legally employed after ten o'clock at 
night in New York or after seven o'clock in Chi- 
cago. The change for the children employed in 
the retail stores in Chicago, to be derived from this 
new statute, is illustrated by another winter-night 
observation of the writer made some years ago 
when returning from the Auditorium after the 
usual Christmas rendering of the Messiah. The 
oratorio had been long, there had been delays, and 
it was nearly eleven o'clock when the cars turned 
the corner at Adams street to go west and then 
southward. There were the usual grip-car and two 
trailers of the cable-train then used on the streets 
of Chicago. All were quite empty when they 
stopped. When they started again, all were 
crowded with children and half-grown girls from 
the great department stores. Many of the children 
could not get inside the cars, but stood huddled on 
the platforms and the grip-car, exposed to the fall- 
ing snow after their long day in the overheated air 
of the stores. Some of the little girls fell asleep, 
others clung to straps, laughing or crying hysteric- 
ally. All had gone to work in the early morning; 

32 



THE RIGHT TO CHILDHOOD 

all expected to return to work — some at seven 
o'clock the next morning, others at eight. 

The writer and her companion were the only 
adult passengers, and when they left the car the 
weary children continued their journey with only 
the gripman and conductor. Some of them would 
go to the end of the car-route, and then stumble 
wearily through deep snow in the winter midnight 
far across the prairie to their homes. 

Children in Manufacture. — The presence of 
children in mills began with the division of labor, 
and the development of machinery driven by steam. 
It was a feature of the civilization of the nineteenth 
century, but reached no large dimensions in the 
United States before 1870. Since then it has in- 
creased and continues to increase wherever no 
counter order is given by restraining laws rendered 
effective by alert and organized public opinion. 

It has been shown that the end of childhood and 
the beginning of toil is an undetermined epoch. 
Even where, as in New York and Illinois, manufac- 
ture and commerce are closed to children under the 
age of fourteen years, street-life, tenement-work 
and the drudgery of the "little-mothers" may 
occupy the earlier years. In less enlightened 
states, manufacture and commerce are open to chil- 
dren at an earlier age, until in Georgia^ there is no 
statutory protection. 

As to the age at which children may begin to 
work in manufacture, the evolution of the public 
conscience may be observed at every stage, from 

* See Appendix I. 
3 33 



SOME ETHICAL GAINS 

the utter absence, as in Georgia, of all statutory 
care even for children aged five, six and seven years, 
to the highest point yet achieved of carefully cher- 
ished childhood under the statutes of New York 
and Illinois. 

In 1903, the legislature of Georgia met twice and 
at each session refused after long deliberation to 
enact a statute restricting the employment of chil- 
dren in cotton mills. There is, therefore, no limit 
below which children may not be employed if man- 
ufacturers can make use of them. The writer has 
seen children at work in a Georgia mill who were 
pitifully stunted if they were eight years old. 
There is, in Georgia, no restriction upon the hours 
of work, and usage calls for eleven hours in twenty- 
four. It was, therefore, due merely to the good 
will of their employer, that these little boys and 
girls were not required to form part of a shift 
of workers at night. Georgia, by these repeated 
votes of her legislature in 1903, has taken a stand 
ethically lower than that of England in 1802, when 
Sir Robert Peel's act was adopted; although 
industrially Georgia is one of the most modern of 
states if tested by the purely material standard of 
the equipment of her mills. 

The same Georgia legislature of 1903 which 
refused to prohibit the work of children less than 
ten years of age, enacted a law declaring any man 
a misdemeanant who permits his young children to 
work in a mill while refusing work which may be 
offered him. Cases arising under this law, how- 
ever, seem already to have demonstrated its futility 

34 



THE RIGHT TO CHILDHOOD 

as a measure for the protection of the children. For 
the fathers arraigned under it found no difficulty 
in proving that they occasionally did some casual 
work, enough to exempt them from all penalties. 

Thus Georgia ranks with Oklahoma in placing 
no restriction upon the exploitation of children. 
Oklahoma, however, has no manufacture and little 
commerce ; while the cotton mills of Georgia are 
doubling their spindles with bewildering rapidity, 
and new villages grow up along the line of the 
Southern Railway almost between spring and 
autumn. 

South Carolina has adopted a curious compro- 
mise according to which children under the age of 
eleven years were not to be employed after May 
1st, 1904, and children under the age of twelve 
years not after May ist, 1905. There are such 
exemptions in favor of widows, whose children may 
work on reaching the tenth birthday, as may reason- 
ably be expected to induce many wives of worth- 
less husbands to pose as widows among the shift- 
ing populations of the mill-villages. 

Alabama prohibits the employment of children in 
cotton mills before the twelfth birthday (always 
with the exception of orphans and the children of 
widows) and restricts work at night expressly to 
those children who have reached the age of thir- 
teen years. Between the thirteenth and sixteenth 
birthdays both boys and girls may legally work 
eight hours at night. 

Similar laws, but without the restriction upon 
night work, are in force in North Carolina, Vir- 

35 



SOME ETHICAL GAINS 

ginia, West Virginia and Missouri. Louisiana pro- 
hibits the employment of girls in mills before the 
fourteenth birthday, but permits boys to work at 
the age of twelve years. Texas prohibits the em- 
ployment of illiterate children under the age of 
fourteen years; those who can read and write may 
work at twelve, both boys and girls. 

The practical value of all these laws to the chil- 
dren and to the community is slight because there 
are neither inspectors to enforce them, nor schools 
to receive the children if they were effectively ban- 
ished from the mills. The chief worth of the stat- 
utes is that they register the growing conviction 
of the community that children must receive some 
modicum of protection. 

\~ For the children they are not wholly valueless, 
because when a measure for the safeguarding of 
childhood is enacted, certain employers obey it sim- 
ply because it is there, irrespective of penalties and 
inspectors. Less scrupulous employers also obey it 
in many cases because they are advised by counsel 
that they will be liable to the child's family in 
heavier damages in case of accident to a child em- 
ployed illegally, such employment constituting in 
itself negligence on the part of the employer, while 
a child under the legal age for employment may be 
held by a court to be incapable of contributory neg- 
ligence. In still other cases, accident insurance 
companies decline to insure children employed in 
violation of the law. Hence a body of usage be- 
gins to form as soon as a child labor law is enacted ; 
and in the long run, only the ignorant and the 

36 



THE RIGHT TO CHILDHOOD 

viciously contumacious have to be brought to obedi- 
ence by the prosecuting and enforcing autliorities. 

From this point of view these recent statutes of 
Alabama, North and South Carolina, Texas and 
Virginia are to be regarded as cheering ethical 
gains ; for they mark a change in the public con- 
science with regard to the sacredness of childhood 
and promise a continuous process of education of 
parents and employers such as has taken place in 
several Northern states during the past thirty years 
and is still going forward. 

History repeats itself in the exemptions emoraced 
in the new Southern laws. It was as recently as 
1903 that New Jersey and Wisconsin repealed pro- 
visions authorizing the employment of orphan or 
indigent children earlier than other children. Wis- 
consin had formerly placed the invidious task of 
granting permission for such children to work upon 
the county judge, and New Jersey upon the factory 
inspector. Judges are but indifferent investigators 
of indigence, and rely in these cases upon the 
opinion of the factory inspector, who is thus dis- 
tracted from his legitimate duty of inspecting fac- 
tories to inspect family relations and poverty. In 
Kentucky this evil provision still exists, but public 
opinion is so thoroughly aroused in favor of abol- 
ishing it, that repeal in the near future seems inevi- 
table. Under the exemptions embraced in the new 
Southern child labor laws, the tendency for every 
child deserted by its father, and for every illegiti- 
mate child who would be a cost to the community, 
to be accounted an orphan and, therefore, liable to 

37 

4fl1719 



SOME ETHICAL GAINS 

exploitation in a cotton mill, may reasonably be 
expected to manifest itself. 

At the opposite end of the scale of morals and 
enlightenment from the action of Georgia, is the 
recent history of legislation in Illinois, which ex- 
hibits an interestingly rapid gain in recognition of 
the claim of childhood to immunity from responsi- 
bility of an industrial and financial nature. Before 
1885, the industrial demand for the labor of chil- 
dren existed in that state only to a limited degree. 
Children were available for the street trades, the 
retail stores, offices, etc., but manufacture was of a 
character offering little opportunity for the use of 
children's labor. Textile industries were almost 
unknown and only the glass-bottle trade found boys 
indispensable. In 1894, the first full year in which 
the inspections were made under the state factory 
law of 1893, there were found at work in the fac- 
tories and workshops, 8,130 children under the age 
of sixteen years. In 1895, the number rose to 
8,624. In 1897, the statute was extended to em- 
brace children engaged in commerce, and the fac- 
tory inspector's report for 1902 showed more than 
nineteen thousand children at work under the age 
of sixteen years, in manufacture and commerce 
alone, not including the children in mines and the 
streets of the cities. 

The first child labor law of Illinois prohibited 
the employment of children under the age of four- 
teen years in mines. This was enacted in response 
to the efforts of the miners' unions. It provided 
for no exemptions. This effort of the miners has 

38 



THE RIGHT TO CHILDHOOD 

achieved a substantial gain lOr the ethical activity 
and perception of the people of Illinois. No one 
would now venture to argue in favor of employing 
young boys under ground in that state, while boys 
of twelve years may still legally work in the coal 
mines of Kansas, and in all mines in Iowa, Mis- 
souri and North Carolina. In 1890, an ordinance 
of the City of Chicago prohibited the employment 
in manufacture or commerce of any child under 
the age of ten years "unless there be dependent 
upon such child any sick or infirm parent or adult 
relative." The legislature of 1891 prohibited the 
employment anywhere in the state of a child under 
thirteen years of age with the same startling pro- 
viso. In 1893, all employment of children under 
the age of fourteen years was prohibited in manu- 
facture but permitted as before in commerce. In 
1897, the minimum age for employment in com- 
merce was raised to fourteen years and thus made 
uniform with the minimum already established for 
mining and manufacture. All exemptions were 
abolished. Tested by experience the administra- 
tive part of the statute proved weak and again com- 
prehensive amendments were adopted in 1903. As 
the law now stands, a child under the age of six- 
teen years may not work after seven p. m. nor 
longer than eight hours in one day and forty-eight 
hours in one week. Nor may a child under the age 
of fourteen years be employed or permitted or suf- 
fered to work in mining, manufacture or commerce. 
These provisions are unspoiled by any exemptions 
whatever. Moreover, a child under the age of 

39 



SOME ETHICAL GAINS 

fourteen years must attend whatever school he is 
in throughout the full term, comprising a fixed 
minimum of no days in the school year. 

Illinois has thus faced, more boldly than any 
other American state, the fact that children to the 
age of sixteen years are different from adults and 
must be differently treated in industry. The new 
laws throw upon the community the burden of 
maintaining all those sick and disabled parents and 
dependent adult relatives whom, as late as 1890, 
the state entrusted to the precarious efforts of the 
children ten years old or less. 

A significant measurement was immediately made 
of the resultant burden to the community. Miss 
Jane Addams, of Hull-House, asked the Chief In- 
spector of Factories to report to her the names and 
addresses of all children under fourteen years of 
age who had been employed under the more lax old 
law and were now deprived of employment by the 
enforcement of the more rigid new law, and whose 
mothers were widows. This was done. In the 
period between July ist, w^hen the law took effect, 
and October 26th, fourteen cases in Cook County, 
which embraces Chicago, and six cases in the rest 
of the state, had been found in which this form of 
hardship appeared to occur. The twenty families 
were investigated with the utmost care, in coopera- 
tion with the Bureau of Charities of Chicago. In 
the end, three families in Cook County and five in 
the remainder of the state proved to be in need of 
the equivalent of the wages which a fatherless 
child less than fourteen years of age had been earn- 

40 



THE RIGHT TO CHILDHOOD 

ing. The task remained of raising money to be 
used as scholarships for these children until they 
should reach the fourteenth birthday. The wages 
earned by the children were from two to four dol- 
lars a week ; and they ranged in age from twelve 
years and six months to thirteen and a half years. 
The period for which the scholarship was needed 
varied, therefore, from six to eighteen months ; and 
the total amount for each child varied between $104 
and $200 distributed over a period of eighteen 
months. The necessary money was secured in 
cooperation with the Illinois Federation of Women's 
Clubs, and the payments are made weekly on Satur- 
day, on presentation of the written statement of the 
principal of the public school that the child's attend- 
ance has been regular and satisfactory. This ade- 
quate volunteer aid, supplied by a few persons, 
shows once for all how slight is the basis for the 
widely expressed fear lest hardship be inflicted far 
and wide, by prolonging the period of childhood to 
the fourteenth birthday. 

The results of this Illinois experiment in furnish- 
ing scholarships for children who had worked under 
the age of fourteen years and were deprived of 
wage-earning by the operation of the more strin- 
gent new law clearly demonstrate that children have 
not, to any considerable degree, been contributing 
to the support of their families. It is impossible 
that they should do so. The community must in- 
evitably support in some way, well or ill, all its 
dependent members. But in the cruel belief that 
this burden could be placed upon the young chil- 

41 



SOME ETHICAL GAINS 

dren, thousands of them have, during the past thirty 
years, been deprived of the rights and privileges of 
childhood. 

The state which accepts the plea of poverty and 
permits the children of the poorest citizens to labor 
prematurely, accepts the heritage of new poverty 
flowing from two sources ; namely, on the one hand, 
the relaxed efforts of fathers of families to provide 
for them, and on the other hand the corruption of 
weak children by inappropriate occupations which 
involve temptation beyond the child's power of 
resistance, and the exhaustion of strong children by 
overwork. It is exactly the most conscientious and 
promising children who are worked into the grave 
or into nervous prostration, or into that saddest 
state of all, the moral fatigue which enables a man 
to sit idly about for years while his wife or his sis- 
ter, or his children support him. 

Hence it appears that there is need of shifting 
the accent of the current method of caring for 
dependent widows and children by public and pri- 
vate philanthropy. If the orphan child, by virtue 
of his future citizenship, has a claim to sustenance, 
education, freedom from exploitation (his labor 
being contraband), and a corresponding duty to go 
regularly to school, then there should be syste- 
matic harmonious provision for this. Such a child 
should not be left to the precarious provision of 
sporadic private charity. Why should such chil- 
dren not receive scholarships dependent upon reg- 
ular attendance and good behavior, and provided 
out of the school-funds? 

42 



THE RIGHT TO CHILDHOOD 

The Glass-Bottle Industry. — The urgent need 
for the present stringent law of Ilhnois can, perhaps, 
best be made clear by a somewhat detailed descrip- 
tion of the children in one trade as it was found to 
exist ten years ago. 

When the first factory law of Illinois was enacted, 
in 1893, it prohibited the employment of children 
under the age of fourteen years in factories and 
workshops. For children employed in the glass- 
bottle works, this provision, until the present year, 
when the new law made this method more difficult, 
was successfully evaded by dissolute men and 
women who gathered in orphan and deserted chil- 
dren from the poorhouses of five counties adjacent 
to that in which stands the city of Alton, and from 
the orphan asylums in St. Louis, and made affi- 
davits as "guardians" of the children that the lads 
w^ere fourteen years of age when they were really 
from seven to ten. The "guardians" then pro- 
ceeded to live upon the earnings of the children 
which were, in 1893, forty cents a day for small 
boys and sixty cents for larger ones. One "guard- 
ian" controlled the wages of several boys. In 
some cases the "guardians" and their wards lived 
in shanty-boats along the Mississippi river, drawing 
their floating habitations well up into the mud of 
the river bank for the winter, and floating away for 
the summer, when the glassworks closed. During 
this enforced holiday the "guardians" and the chil- 
dren lived precariously by fishing and berry-pick- 
ing, the children profiting by the fact that the glass- 

43 



SOME ETHICAL GAINS 

blowers could not endure the heat of the ovens dur- 
ing July and August. 

The earnings of the glass-bottle blowers depend 
somewhat upon the speed of the boys who fetch 
and carry for them. These lads are, therefore, 
kept trotting at the highest speed which a child 
can maintain for several hours. In making inspec- 
tions of the glass-bottle works, the writer found it 
impossible to get from a boy a consecutive state- 
ment as to his name, address or parentage. A boy 
would say, "My name is Jimmie ;" and then trot to 
the cooling oven with his load of bottles and return- 
ing say, in answer to a fresh question, "I live in a 
shanty-boat;" then trot to the moulder for another 
set of bottles and returning say, "I'm going to be 
eight next summer," and so on. Among twenty- 
four lads questioned during one night-inspection, 
not one ventured to pause long enough to put 
together two of the foregoing statements. And the 
eye of the boy interrupted in his work was always 
fastened anxiously upon the blower for whom he 
was working. The blower did not pay the boy, 
who was carried on the payrolls of the company; 
but when a boy was detained for the purpose of 
questioning, a shrill whistle sounded and the boy 
would say to the inspector, "Don't you hear him 
doggin' me?" 

The load of bottles which a boy carries at any 
one time is not heavy and there is no lifting to be 
done. Hence such work is commonly described by 
employers as "light and easy." But the circum- 
stances attending the work, the surroundings amid 

44 



THE RIGHT TO CHILDHOOD 

which it is done, fill the words with ,c:rini sarcasm. 
The sustained speed required of the children and 
the heated atmosphere render continuous trotting 
most exhausting. An hour's steady trotting in 
pure air tires a healthy schoolboy, of seven to four- 
teen years ; but these little lads trotted hour after 
hour, day after day, month after month, in the heat 
and dust. 

There w-as no restriction upon night work. Any 
boy who was eligible for work at all, was used indif- 
ferently by night or by day ; and pitifully little chil- 
dren were found at work at tw'O o'clock in the morn- 
ing. Often a sleepy child, stumbling among frag- 
ments of white-hot glass, received serious burns; 
and bandages were more common than among any 
workers that the writer has seen in the course of 
many hundreds of inspections. Indeed, loss of 
time while recovering from burns received during 
their work constituted one of the grievances of the 
"blowers' dogs," of whom several were found in 
their homes convalescent from burns and other ill- 
nesses incident to their occupation. Mothers com- 
plained bitterly, too, of the loss of coats and shoes 
by burning when the boys collided with each other 
in the course of their work, the burden of each being 
glass heated just below the melting-point. 

At the close of the day's work or the night's work, 
the children wxnt from the heat and glare of the 
glass-ovens into the cold and dark of the morning 
or evening. They went, with the men with whom 
they worked, to the nearest saloons to buy the cheap 
drinks which w^ere freely sold just across the street 

45 



SOME ETHICAL GAINS 

from the works. All the boys used tobacco, usually 
chewing it, those of seven and eight years of age 
doing exactly what the men did by whose side they 
spent their working hours. As seen and heard at 
their work, and at the closing hour, when they left 
the works, these children were stunted, illiterate, 
profane, obscene, ruined in body and mind before 
they entered upon the long adolescence known to 
to happier children. 

The sharp contrast between the heat of the glass- 
ovens and the frost of the winter mornings, pro- 
duces in the children, wearied by hard work, rheu- 
matism and affections of the throat and lungs, from 
which many of them die before reaching the age of 
apprenticeship. Of those who survive, virtually 
none succeed in attaining the position and wages 
of a skilled glass-blower. Their health would be 
inadequate to the strain, even if the career were 
open to them. But it is not open; for an old rule 
of the union limits closely the number of appren- 
tices to each hundred glass-blowers and fixes the 
age of apprenticeship at seventeen years. The cov- 
eted privilege of apprenticeship is commonly re- 
served by the blowers for their own sons, whom 
they do not employ as "dogs" but keep to the age 
of seventeen years, either attending school or work- 
ing in some less destructive occupation than glass- 
bottle making. 

When in 1893 the first efforts were made to 
enforce the child labor law in the glassworks at 
Alton, the employers and the press foretold dire 
sufferings for the widows dependent upon their 

40 



THE RIGHT TO CHILDHOOD 

children's earnings. The writer, as responsible 
head of the factory inspectors, by request of the 
governor of Illinois, made an investigation of the 
general conditions of life of the children and their 
families, aside from the work which they did in the 
glass-ovens. 

It soon became clear that the opening for the 
employment of young children served continuously 
to attract to Alton a most undesirable population 
from many places in Illinois and neighboring states. 
Thus the first three alleged widows who were vis- 
ited, had all come from other places for the express 
purpose of living upon the earnings of their 
wretched, illiterate sons, supplemented by the gifts 
of the charitable. One was found living in a tent 
with three children, the two younger ones being 
regularly neglected while the mother and the older 
boy worked in the bottle works. Another "widow" 
did washing, which was insufificient for the main- 
tenance of herself and three children. Her husband 
had been sent two years before to an asylum, an 
incurable patient. A trifling, continuous addition 
to her earnings would have enabled her to keep her 
boy in school ; but the charitable people of Alton 
contributed to the partial support of her family 
while the glass-works exploited her boy at wages 
below the point of present subsistence, and with no 
acquisition of skill such as might make him self- 
supporting in later years. If the boy had not 
worked, though of school age and illiterate, the 
mother feared that the charitable gifts might be 
wholly cut off. There appeared to be good reason 

47 



SOME ETHICAL GAINS 

for her fear, as the mayor of the city stated to the 
writer that he had, himself, sent to the glassworks 
in search of work, a widow and her little boy under 
the legal age for working, when the mother 
appealed to him for help. The third of the "wid- 
ows" was blind, and her husband, blind also, was 
in an asylum. She lived in a shanty-boat with her 
four little children. Of her two boys aged seven 
and nine years who worked at the glassworks, one 
was blind in one eye. When the husband was sent 
to an asylum, the family was placed in its boat by 
the county authorities and told not to return. They 
accordingly floated down from a point above Plym- 
outh to Alton where, although the two little boys 
immediately found work, the mother promptly 
applied for relief which was refused on the ground 
that "her able-bodied sons" should support her. 
In the family of a laborer who was working for 
eighty cents a day, the consumptive wife and baby 
were found shivering over a drift-wood fire in a 
dilapidated boat, while two boys aged eight and 
ten years worked at the glassworks. The family 
had floated down the river in the autumn for the 
sake of sending the children into the glassworks. 
A worn-out and dissolute glass-blower who had a 
pension of eight dollars a month and five children 
under the age of fourteen years, had recently mar- 
ried a widow with six children under fifteen years. 
Father, mother and the eleven children were living 
in a tent between the river and the works, where 
several of the children were employed, some by 
night and some by day, so that the beds in the tent 
48 



THE RIGHT TO CHILDHOOD 

were used by different children, one set rising to go 
to work when the others returned to sleep. 

All these families — and they are merely a few 
examples of a large population which they typify — 
had been sent or brought to Alton in order to meet 
the demand of the glassworks for cheap child labor. 
They were a permanent charge upon the charitable 
people of the city. In no single case did the earn- 
ings of the little boys really support the family and 
relieve the community even immediately and tem- 
porarily of that burden. There was child labor and 
charitable help, and in most cases, chronic pauper- 
ism besides, with every prospect that the over- 
worked, ill-brought up boys would themselves be 
speedily added to the ranks of the tramps or 
the invalids. 

Under the recent rigorous prohibition of the em- 
ployment of children under the age of sixteen years 
after 7 p. m., the possibility of exploiting such 
young children as were found at work in 1893 is 
much reduced. Under the provision which requires 
the oath of the parent to be corroborated by the 
signed statement of a responsible person in a recog- 
nized school, that the child is fourteen years of age, 
has attended school and can read fluently and write 
legibly, such exploitation must be still farther 
reduced. 

What then, is it reasonable to expect in the im- 
mediate future for such dependent families as those 
above described? Certainly Alton can no longer 
serve as so powerful a magnet drawing them to 
itself. The local authorities of the various cities 
4 49 



SOME ETHICAL GAINS 

and counties can no longer ship to Alton all those 
dependent families which happen to include a young 
boy under the age of fourteen years. The artificial 
aggregation of pauperism in one place may be 
expected to diminish. A number of scattered com- 
munities will each have its own few dependent fam- 
ilies of this class to sustain until the children attain 
the qualifications of age and education which the 
state stipulates. That these families can be induced 
to keep their children in school by means of a very 
modest scholarship for each child, has been con- 
clusively shown by the experiment recently con- 
ducted in Chicago. 

For many years, the opportunity for exploiting 
young children in Alton tended to collect there a 
disproportionately large body of dependent fam- 
ilies. Then the presence and number of these fam- 
ilies served as an argument for the necessity of 
continuing to exploit the children. The artificially 
accumulated mass of poverty perverted the minds 
of many otherwise kindly persons who failed to see 
that a pauper family is no less a pauper family 
because it is using up and wearing out by premature 
labor a young child who, if cherished and trained 
for a few years, would subsequently be able to sup- 
port his family and redeem it from pauperism. 

It is no small ethical gain to clear up the confu- 
sion of mind which led persons of all sorts to ex- 
plain that the children who worked at the glass- 
works were so intrinsically and inevitably bad that 
nothing could be done with them in the way of edu- 
cation or of reform. The use of stimulants by 

50 



THE RIGHT TO CHILDHOOD 

young boys, which inevitably followed overwork 
and evil example, was very generally attributed to 
the hopelessly bad native character of the unhappy 
children ; as were the foul language, filthy personal 
habits and propensity to gambling common to old 
and young employees. Every citizen of Alton who 
talked with the writer about the boys working at 
the glassworks, dwelt upon the bad character of 
the children, calling them "tough" or "dissolute" 
according to the habit of speech of the person. 
The suggestion of abolishing the work of such chil- 
dren, dispersing the army of little offenders, dis- 
tributing them through the schools with which 
many of them were totally unacquainted, making 
schoolboys of the whole body of children of com- 
pulsory school age — the line of action taken by 
Boston, New York and Buffalo with regard to the 
dissolute young newsboys upon their streets — this 
simple recognition of the right of childhood to 
school-life and immunity from toil, never found 
expression on the part of one person with whom the 
writer came in contact in a long and active study 
of that prosperous city. The mayor actively pro- 
moted the employment of children under the legal 
age for work. An important officer of the board 
of education was a member of the glass manufac- 
turing company, and was of the opinion that the 
employment of a truant officer and the enforcement 
of the compulsory education law would inflict an 
intolerable burden of poverty upon the community. 
The secretary of the associated charities, who was 
a minister, and the superintendent of the poor, also 

SI 



SOME ETHICAL GAINS 

a minister, agreed that nothing could be done 
which would make it appear that the glassworks 
had been employing pauper labor, and therefore 
they could not undertake to furnish scholarships 
for the children whom the factory inspectors 
turned out of the glassworks because they were 
under fourteen years of age. Only teachers of the 
primary schools expressed regret at losing some of 
their brightest and best behaved little boys out of 
the lowest grades to go to work "among those 
drinking, swearing, gambling ragamuffins at the 
works," 

It is clear gain for a community to be freed from 
such obliquity of moral vision as this ; to be forced 
to face its own burden of sins of omission and com- 
mission against the children of its poorest and most 
dependent citizens ; to be constrained to take upon 
the broad shoulders of the adult population that 
burden of maintenance which children cannot carry, 
even though in the cruel efifort to force them to do 
the impossible they may be crushed body and soul 
as hundreds of children have been crushed and 
ruined in the beautiful and prosperous city of xA.lton. 

In Southern New Jersey, in Western Pennsylva- 
nia, wherever the glass-bottle industry attains a 
high state of development, the same tendency is ob- 
servable. Dependent families are, as it were, en- 
ticed to bring their young children to work in the 
glass-bottle factories. When a large number of 
such families have come, the demand for still more 
young boys leads to the importation of detached 
lads. Then the presence in the community of an 

52 



THE RIGHT TO CHILDHOOD 

undue proportion of dependent persons, young and 
old, serves as a reason for deferring legislation re- 
stricting the employment of the youngest children 
and providing for their education. 

There is nothing either accidental or passive in 
this process. Although the manufacture of glass is 
one of the industries most highly protected by the 
tariff for many years past, and although the wages 
of glass-blowers are protected by a most influential 
and all-embracing union, yet employers and glass- 
blowers have, in at least two states, worked together 
to keep the children from receiving any adequate 
legislative protection. In Illinois for ten years the 
glass manufacturers were successful in their un- 
wearying efforts to prevent the enactment of a pro- 
vision restricting night work to persons over the age 
of sixteen years. And even when the present en- 
lightened measure was finally passed, in 1903, this 
was done against the protest of the manufacturers 
and of a glass-bottle blower who appeared before 
the senate committee at Springfield in opposition to 
the bill. In New Jersey, in 1904, there was the 
same conflict, the glass-bottle blowers' union as 
such urging the passage of a law prohibiting night- 
work for children, and the glass manufacturers 
nevertheless securing for the opposition the support 
of a state senator at Trenton, who had once been a 
blower, and who succeeded in getting stricken out 
of the bill this most valuable of its provisions, de- 
spite the united efforts of the labor organizations of 
the whole state, and of the Children's Protective 

53 



SOME ETHICAL GAINS 

Alliance, comprising forty societies for the protec- 
tion and welfare of children. 

In Pennsylvania, in March, 1903, the Western 
Pennsylvania Association of Glass Manufacturers 
voted at a public meeting held in Pittsburg to keep 
a committee at Harrisburg throughout the session 
of the legislature to prevent the enactment of a 
measure prohibiting night-work for children and 
all employment of illiterate children. So successful 
was this committee that the friends of the bill were 
not even granted a hearing before the senate com- 
mittee to which the bill was referred. In all these 
cases the arguments used were identical. Poverty 
must not be intensified by prohibiting the employ- 
ment even of the youngest and most illiterate chil- 
dren. 

Fortunately, the friends of the working children 
have at last succeeded in bringing to light the hy- 
pocrisy of this plea. It has been shown that for a 
series of years the glass manufacturers of New 
Jersey and Ohio have imported children from other 
states. Charitable institutions and child placing 
agencies have been appealed to to furnish detached 
boys and have done so in more than one case. Chil- 
dren have been sent from one state to another to 
meet the demand. It is now only a question of 
time until all the legislatures which have to deal 
with this child destroying trade shall take the same 
view which Illinois and New York have taken ; and 
shall say that the state can better afford to part with 
such an industry than to sacrifice to it hundreds of 
children every year. And when they do this, no 

54 



THE RIGHT TO CHILDHOOD 

state will lose its glass-bottle industry ; but the in- 
stallation of mechanical contrivances to supplant 
bo\s will go forward just as cash carriers arc now 
supplanting cash children, and as the telephone is 
replacing the telegraph and messenger boy in many 
suburbs. In some occupations child labor by its 
very cheapness to the employer actually hinders the 
use of devices which are costly in the initial instal- 
lation ; and it is believed that the glass-bottle indus- 
try is one of these. 

The glass-bottle industry illustrates one signifi- 
cant phase of child legislation in this country ; 
namely, the long default of philanthropy on behalf 
of the wage-earning children. We have had no 
Lord Shaftesbury devoted to the child workers and 
cooperating with the organizations of workingmen 
in the interests of the children. To the organiza- 
tions of labor are due all the earlier statutes for the 
protection of the working children, and this protec- 
tion has been left wholly to the trades unions until 
within a very few years. In certain industries this 
has been done effectively, as in the cigar trade 
where the introduction of machinery is only now 
leading to a large influx of children. In other in- 
dustries, the adaptability of children has been so 
great as to render the unions powerless to protect 
them adequately either by legislation or by refusing 
to work with them. Conspicuous among these are 
the textile industries. In still other trades, the 
wages of the worker have been made to depend in 
some degree upon the interlocking work of children, 
and in these the difficulties attending progress 
55 



SOME ETHICAL GAINS 

towards adequate guarding of childhood have been 
most conspicuous of all. Such is the glass indus- 
try. Here the wage of the blower of bottles, lamp 
chimneys, drinking glasses and many other small 
objects depends largely upon the speed with which 
children as moulders and carriers cooperate with 
him. Hence the blower has a strong money interest 
in the employment of nimble children in abundance. 

It is vastly to the credit of the workers in the 
trade that, through their organizations, they have 
made a struggle covering the last quarter of a cen- 
tury for statutory prohibition of night work for 
children. And it is easily understood how their 
efforts have here and there been foiled by a weak 
brother proving open to the persuasions of the em- 
ployers and ready to appear before legislative com- 
mittees on behalf of the farther work of children in 
the same old way. 

It is, however, sadly true that workingmen are 
not always experienced in the drafting of bills, and 
that some of the measures which they have advo- 
cated have proved non-enforceable when enacted. 
Moreover, they have in several conspicuous cases 
been induced to contribute actively, though unin- 
tentionally, to the nullification of the statutes the 
enactment of which they had secured, by accepting 
as responsible heads of the factory inspection depart- 
ments men whose sole qualification for the position 
was their professional devotion to the cause of trade 
organization. Two classic examples of this are the 
chief factory inspectors of Pennsylvania and 
Illinois during the closing years of the nineteenth 

S6 



THE RIGHT TO CHILDHOOD 

century. In the former state the unions acquiesced 
in the utterly incompetent administration of the de- 
partment of factory inspection because the chief in- 
spector had been for several years an officer of the 
Glass Workers' Union of the Pittsburg district, al- 
though he effectively blocked every effort to im- 
prove the laws with regard to the employment of 
children at night or while illiterate. The chief 
inspector of factories of Illinois from 1897 to 1901 
had been, previously to his appointment, for twenty- 
seven years on the pay roll of the Illinois Glass 
Company at Alton. Throughout his term of office 
there were no prosecutions for violations of law by 
glass manufacturers, nor was the child labor law of 
Illinois amended. Yet no effort seems to have been 
made by any trade organization to secure his re- 
moval and the appointment of an effective official. 

Within five years philanthropic people, notably 
many organizations of women, have systematically 
worked for the enactment and enforcement of child 
labor legislation, usually in cooperation with the 
state and local organizations of workingmen. Just 
in proportion as this cooperation develops will the 
gains on behalf of the working children become per- 
manent ; and the cooperation, itself, is a process of 
education for both philanthropists and workingmen. 



57 



CHAPTER II 

THE CHILD, THE STATE, AND THE NATION 

It has been shown that children are working in 
their homes, in the streets, in commerce, and in 
manufacture; and it appears that there are divers 
economic and social causes for their work. 

Chief among these causes of child labor is the 
greed of parents, due largely but not exclusively to 
poverty. Two cases out of the writer's acquaintance 
may illustrate the false ideals which underlie much 
parental exploitation of young children. 

An ItaHan immigrant arrived in this country pos- 
sessed of nothing beyond his wife, little son and 
daughter, and railroad fare to Chicago. In that city 
he rented one dark room in a tenement-house and 
proceeded to pick rags in the streets. His wife 
sorted the rags in the court of the tenement-house 
with the help of the daughter ; and the boy became a 
boot-black as soon as he was strong enough to make 
leather shine. The children never attended school, 
the compulsory attendance law being, at that time, 
wholly illusory. The father prospered, placed 
money in the savings-bank, and in an incredibly 
short time began to buy, under a third mortgage, the 
house in which he lived. The court of the tenement- 
house becoming too small for his work, he rented a 

58 



CHILD, STATE AND NATION 

vacant lot on which he stored rags, old iron and 
junk of all sorts. He never ceased to pick rags, and 
transferred the labors of his wife and daughter from 
their court to the new place of business which he sur- 
rounded with a high fence. He completed the pay- 
ments for all the mortgages upon the tenement- 
house, continuing to the time of his death to live, 
with all his family, in the dark room which he had 
occupied on his arrival. He paid for the corner-lot 
upon which he conducted his business and made 
other investments. It was his ideal to leave his chil- 
dren a large fortune. But one day he trod upon a 
rusty nail, and with characteristic niggardliness, 
bound, up his bleeding foot with one of his own rags. 
Lockjaw followed and he died, leaving to his now 
grown up, illiterate son and daughter one hundred 
and forty thousand dollars. The son, by drinking 
and gambling, dissipated the fortune in a few 
months, and the daughter disappeared into the sad 
obscurity of the Levee. 

In the case of the second family, a young Bo- 
hemian, able-bodied and eager to work, brought his 
bride to this country, both filled with the hope of 
earning and owning a home. When the eldest child 
was eleven years old, the father was killed on the 
railroad, where he was at work as a section-hand, 
and the home, half-paid for, was lost by the widow. 
But she never wavered from the early ideal, and sent 
her eldest boy at once to work in a cutlery, where he 
riveted the wooden handles of knives, performing an 
entirely mechanical task adapted to his feeble intel- 
lect. This child was hunchbacked, feeble-minded 

59 



SOME ETHICAL GAINS 

and consumptive. When the mother was remon- 
strated with for exposing him to the fatigue and dan- 
ger attending his work among wood-dust and steel- 
filings, her reply was : "Him no good. Him work, 
send Valeria and Bocumil school, buy house, them 
some good." For years, the factory inspectors of 
the state, and the local school officer, after the enact- 
ment of the compulsory attendance law, endeavored 
to free the unfortunate boy from his deadly occupa- 
tion. The mother made whatever affidavits might 
be necessary from time to time, to enable him to con- 
tinue, and relentlessly sent his brother and sister to 
work at the earliest moment possible. When last 
seen, she was rising at three o'clock in the morning 
to dig onions for a pickle factory in the outskirts 
of the city ; the daughter Valeria, ten years old, was 
working from dawn to dark throughout the summer, 
sorting onions ; the cripple was dying of overwork 
and neglect ; and the other boy, Bocumil, originally 
healthy, had become deformed from beginning too 
early to carry boards on his back in a furniture 
factory. 

The widow, however, regarded herself and was re- 
garded by her approving pastor as a model of thrift 
because she had bought and partially paid for a tiny 
frame cottage, on the prairie, far from any school, 
in the immediate neighborhood of the pickle-factory. 
She will never know that she has lost for her children 
all the best things that America offers to the immi- 
grant child, in the life of the public schools. Fortu- 
nately, the recently enacted stringent laws will make 
it impossible for other children coming to Chicago to 

60 



CHILD, STATE AND NATION 

be deprived, by the false ideals of their parents, of 
those precious possessions of child life in America, 
leisure and school. 

A second cause of child-labor is the greed of em- 
ployers for cheap labor, enhanced by every improve- 
ment in machinery of the kind that makes the work 
of children available ; and enhanced, also, by the very 
cheapness of the children to such an extent as to 
delay the introduction of new machinery if its in- 
stallation is costly. This greed is exhibited in its 
most odious form in the glass industry, the textile in- 
dustry, and the sweating-system. It knows no 
restraints except those of effective legislation en- 
forced by enlightened public opinion, as is shown by 
the action of those Northern cotton mill men who 
obey the laws of Massachusetts and New York in 
their mills in those states, but in Georgia fall to the 
level of their local competitors, employing children 
ten years old and less, throughout eleven hours a day. 

A third cause of child labor is the greed of the 
community in desiring to keep down the cost of 
maintenance of its dependent class. This greed dis- 
guises itself under the form of solicitude for the 
moral welfare of the children. Just as the managers 
of the worst so-called reformatories insist that chil- 
dren must work under the contract system, "because 
they must be kept busy to keep them from being 
bad," so this solicitude for childish morals insists 
that "children must not be habituated to dependence," 
quite forgetting that dependence is the quality be- 
stowed upon childhood as its distinguishing char- 
acteristic. 

6i 



SOME ETHICAL GAINS 

Any candid person, on being asked, "What virtues 
may be reasonably expected of children ?" must reply 
that we do not yet know. Our studies of the psy- 
chology of childhood are still so imperfect and 
inconclusive that it is not safe to dogmatize in this 
field. But by a process of elimination it is possible 
to arrive at certain conclusions which seem worth at 
least careful consideration. 

Thus, observation of so-called self-made men sug- 
gests a serious danger that a child precociously self- 
respecting in the matter of earning his living may 
pay a high price, later in life, for his precocity. It is 
proverbial that the employer who began life as a 
working boy and through continuous exertions rose 
to power and responsibility, is apt to be a ruthless 
employer. The unnatural strain of his own early ex- 
perience seems to entail this penalty upon his char- 
acter and consequently upon his unhappy employees. 
Self-respect due to self-maintenance seems to be a 
virtue suitable to the later years of adolescence and 
to adult life, — never to childhood. Moral precocity 
seems to be quite generally followed by exhaustion or 
by reaction taking the form of greed, rapacity and 
calculating self-seeking. 

Just as excessive fatigue, or habitual loss of sleep 
in childhood is punished in later life by the craving 
for stimulants, and by nervous insufficiency mani- 
festing itself in the most diverse ways, — so the bur- 
den of industrial employment borne in early, tender 
years, disables the boy or girl for enlightened, self- 
supporting citizenship in later life. 

To impute a virtue not normal to childhood and 
62 



CHILD, STATE AND NATION 

then insist that the children shall live up to adult 
standards applied to that virtue, is perverted, and 
injurious alike to the community which follows this 
course and to the children who suffer under it. If 
the burden of self-maintenance or the attempted 
maintenance of others is placed upon young chil- 
dren, — if child labor is tolerated, — the ethical stand- 
ards of the community are bad. For a task which is 
normal and right for adults cannot be performed by 
children without sacrificing in the process their fu- 
ture usefulness to the Republic. 

The insistent plea that children must work in order 
that they may acquire habits of thrift and attain pros- 
perity for themselves and their families is uttered 
with greatest persistence by the employers who 
profit by the labor of the children. It is the glass 
manufacturers who voice this tender solicitude for 
the moral well-being of the wage-earning children 
in New Jersey and Pennsylvania, wdien there is a 
growing movement in those states for prohibiting 
night w^ork, as it has been prohibited in Illinois. In 
the South, it is the cotton-mill owners and their legal 
advisers who insist that little children from the 
mountain farms must toil eleven hours a day in the 
mills of Georgia, working throughout the night 
whenever it may be useful to their employers to have 
them do so. 

These pleas are heard with willing ears by com- 
munities which begrudge money for the maintenance 
of schools and the assistance of dependent widows 
and orphans; and not without good reason. No 
sooner had the new law of New Jersey required chil- 
63 



SOME ETHICAL GAINS 

dren to attend school to the fourteenth birthday, and 
prohibited boys under that age from working in 
manufacture, than it became necessary to build a new 
schoolhouse in a suburb of Millville, to accommodate 
the boys turned out of the glassworks. In Alton 
the enforcement of the child labor law of 1893 led 
to the immediate construction of a new schoolhouse 
for the children freed from the glassworks, and to 
the reopening of a building which had long been out 
of use. Wherever children are freed from work, the 
community must provide for them schools, teachers, 
attendance agents, factory inspectors and all those 
officials and provisions which are essential to the care 
and defense of childhood under the pressure of the 
competitive system. 

Besides being essentially immoral, the effort to 
burden young children with the task of self-mainte- 
nance is doomed to failure, for under existing con- 
ditions a child does not, and cannot achieve complete 
self-maintenance. The three great series of indus- 
tries in which children are largely employed, — the 
textiles, glass-making and the needle-trades, — are 
parasite trades. They are all protected by tariffs for 
the advantage of the employers ; — and by more or 
less stringent trade regulations for the advantage of 
the adult male employees. In the case of the needle- 
trades, there are lavish subsidies from the public 
treasury of New York City, the great center of the 
needle-trades for the western hemisphere. By the 
help of these subsidies, sewing is done by the inmates 
of institutions erroneously called private, while main- 
tained by the taxes of the community, at rates with 

64 



CHILD, STATE AND NATION 

which no private manufacturer can long compete. 
But more insidious than all these contributions to 
the parasite industries is the steady contribution of 
underpaid work from children who carry home 
wages too small to support them. 

Parents become willing to exert themselves less 
when the eldest boy and girl begin to contribute 
something towards the family maintenance, and are 
not strenuous in the demand that the child's wage 
shall afford self-support. "Every little helps," is 
the hand-to-mouth consideration with which the 
hard-worked immigrant withdraws his son or 
daughter from school on the first day that the law 
allows. 

The unthinking community tends to approve 
every exertion in the direction of money earning on 
the part of those who are most nearly at the line of 
submergence, asking no questions as to the ultimate 
effect upon the future citizen. 

The oncoming generation neither knows nor cares 
what burden of incapacitated members the present 
generation is preparing for it. But the burden will 
have to be borne, just in proportion as the children 
of to-day are deprived of the right to childhood. 
And nothing is more surely handed down than the 
callous indifference of the mass of the people to the 
causes of that destitution which is an intrinsic part 
of the life of every manufacturing community ; — as, 
for instance, the death or disability of the bread- 
winner, or the widespread and ever-increasing cus- 
tom of desertion by the fathers of burdensome young 
children. 

5 65 



SOME ETHICAL GAINS 

Thus the essentially immoral effort to place upon 
the children the burden of self-maintenance not only 
fails at the moment, — it reacts injuriously upon the 
community, preparing for the next generation an 
undue share of incapacitated members, bequeathing 
to the future a large proportion of unfit and incapable 
citizens, and finally generating, among the people at 
large, indifference to the causes of death or disability 
of the breadwinner. 

On the other hand, with the growing recognition 
of the right of the child to maintenance and educa- 
tion throughout a prolonged period, goes a lively in- 
terest in the health and welfare and probity of the 
normal breadwinner, who is theoretically responsible 
for its support. 

In other words, while the demand for child labor 
is an economic one, the causes of its persistence are 
moral and social and are rooted in the false ideals of 
parents, employers, taxpayers, and all those indiffer- 
ent people who care nothing what citizens are being 
trained for the future life of the Republic. 

Consequences of Recognition of the Child's 
Right to Exemption from Work. — Wherever the 
community recognizes the right of the children to 
freedom from labor, the question of maintenance 
comes to the front and the widows and dependent 
orphans loom large in the imagination of the kindly. 
On the other hand, where the effort is made to place 
the burden of maintenance upon young children, the 
loss of the breadwinner appears of less vital im- 
portance to the community. Tuberculosis, carrying 
off heads of families, burdens the manufacturing 

66 



CHILD, STATE AND NATION 

communities of the United States annually with 
thousands of widows and orphans. Preventable 
deaths of breadwinners in the railway service burden 
in the same way the communities in which their 
families live. If now, these communities face the 
task of cherishing the children and educating them 
throughout childhood to full fitness for citizenship, 
the problem of orphanage relates itself, in a new and 
vital way, to the question of the prevention of need- 
less deaths of men in the prime of life. Orphanage 
becomes recognized, not as an accident or an inevi- 
table misfortune for the individual family, to be 
borne with what fortitude can be summoned ; but as 
a social and industrial phenomenon, a burden to be 
minimized by preventive and precautionary meas- 
ures. It is not accidental that Massachusetts, the 
state which has longest guarded the right to child- 
hood, is also the state in which the safety of life and 
limb of the adult worker is best safeguarded by 
statutory provision. 

The enforcement by the Interstate Commerce 
Commission of statutes providing for life-saving 
devices to be used upon railways, has undoubtedly 
diminished the preventable deaths of breadwinners, 
reduced the number of orphans, limited the tempta- 
tion to exploit young children, and thus reacted in 
an important way to the ethical gain of the nation, 
quite aside from its direct value to the railway em- 
ployees. 

When young children are made ineligible as bread- 
winners, the responsibility is placed where it belongs. 
upon their parents or upon the community. And 
67 



SOxME ETHICAL GAINS 

there is nothing more moraHzing going on at present 
in the United States than this shifting of responsibil- 
ity from the weaker to the stronger. 

Hand in hand with restriction upon the work of 
Httle children goes increased care to prevent the im- 
portation into the state of dependent and delinquent 
boys and girls. Thus, for instance, Illinois and 
Michigan have now rigid statutes prohibiting bring- 
ing into those states any child whose future mainte- 
nance is not provided for either by the presence of 
an accompanying parent or guardian, or by a bond 
furnished by an incorporated society for the care 
and guardianship of the child. Recent revelations 
of the importation of boys from one state into an- 
other, for the use of glass manufacturers, show an 
urgent need for similar care on the part of all states 
in which this industry flourishes. Just as the textile 
mills, in the days of Sir Robert Peel's act, sought ap- 
prentices among the little children in the workhouses 
of England, so the glass manufacturers, to-day, seek 
orphans and other detached boys from poorhouses 
and voluntary charitable bodies ; and the traffic in 
such boys goes forward where it is not checked by 
legislation and by the cooperation of labor organiza- 
tions and child labor committees working together. 

When the orphans are scrutinized and provided 
for, it becomes clear that the problem of child labor 
is really not the problem of the orphan. It is the 
problem of cheap hands for the employer of cheap 
labor ; — the problem of permitting to selfish parents 
the luxury of absorbing the premature earnings of 
young children. But it is the pride of the enlight- 

68 



CHILD, STATE AND NATION 

ened employer that he supplants hnnian labor with 
mechanical devices as rapidly as ingenuity enables 
him to do this ; and every restriction upon the supply 
of children in the labor market stimulates this 
process. 

It is clearly the duty of the parent to support his 
children ; that is his obligation to the Republic. He 
must insist upon wages sufficient to enable him to do 
this ; and the withdrawal of thousands of young chil- 
dren from competition with adults contributes to his 
ability to make his own terms for wages wherewith 
to support his own. An aged Welsh miner, of the 
writer's acquaintance, who had emigrated to Illinois, 
once related upon the floor of the state legislature, of 
which he was a member, his own experience in this 
respect. In Wales, he and his wife and two little 
sons had all worked underground, making the barest 
living. It was proposed to prohibit the work of 
women and children underground and he was filled 
with consternation lest they all starve. But the law 
was passed, the wife and children, instead of mining 
coal, lived above ground, the children attending 
school and the wife cultivating a garden ; and within 
twelve months the father of the family was earning 
more than all four persons had previously earned by 
their combined labor. So convinced was the speaker 
that his experience was typical of the depressing 
effect of the work of women and children in unsuit- 
able occupations, that he convinced his colleagues, 
who passed unanimously the pending child labor bill. 

The practical value, to the state and to the chil- 
dren, of effective child labor legislation is well illus- 

69 



SOME ETHICAL GAINS 

trated by a comparison of the employment of chil- 
dren in New York, Pennsylvania and Massachusetts. 
When rated according to their population and the 
value of their manufactured products, the two lead- 
ing states are New York and Pennsylvania, the 
former excelling in both respects according to the 
census of 1900. In the number of children under 
the age of sixteen years engaged in manufacture, 
these states excel all the others, as appears from the 
following table of states having more than five thou- 
sand such children. 

Children Under 16 Years of Age Engaged in Manu- 
facture^ 

Pennsylvania 33.135 

New York 13,189 

Massachusetts 12.556 

Illinois 10,419 

North Carolina 10,377 

South Carolina 8,560 

New Jersey 8,042 

Georgia 6,373 

Maryland 5,884 

Wisconsin 5,679 

Rhode Island 5,036 

In this table, however, it is Pennsylvania which 
comes first and New York which takes second place, 
there being 33,135 children under the age of sixteen 
years engaged in manufacture in Pennsylvania, com- 
pared with 13,189 children under that age in the state 
of New York, a difiference of 19,946. This does not 
include children engaged in commerce and mining; 
— does not take into account mine boys or breaker 

^ These figures are found in the Census, 1900, Manufactures, 
Part II, States and Territories, p. 987. 

70 



CHILD, STATE AND NATION 

boys, office boys, newsboys, bootblacks, peddlers, de- 
livery boys, cash children, or children who work out 
of school hours while regularly attending school. It 
is strictly a statement of the children employed in 
manufacture in both states. 

The astonishing excess of children employed in 
Pennsylvania is emphasized by the circumstance that 
New York has not only a larger population but a 
larger total value of manufactured goods than Penn- 
sylvania. How then is the fact to be explained that 
Pennsylvania employs in manufacture two and one- 
half times as many children as New York ? 

One explanation may be found in certain dififer- 
ences in the child labor laws in force in the two 
states for several years preceding 1900. Thus in 
Pennsylvania children entered upon factory work a 
year earlier than they had been permitted to do in 
New York since 1889, the age for beginning work 
having been, until May, 1905, thirteen years in 
Pennsylvania and fourteen years in New York. 

In Pennsylvania, a child was not, before 1900, re- 
quired to be able to read and write before beginning 
to work in a factory. In New York, since 1893, a 
child under sixteen years of age must be able to read 
fluently and write legibly simple sentences in the 
English language before it can legally enter a 
factory. 

In New York a minor under the age of sixteen 
years cannot legally be employed in a factory after 
nine o'clock at night ; in Pennsylvania, boys and girls 
alike could, until May, 1905, at the age of thirteen 
years be employed ten hours six nights in the week. 

71 



SOME ETHICAL GAINS 

Even yet, boys of fourteen years may be employed 
all night in the glass industry and in certain other 
branches. 

There was greater difficulty in New York in ob- 
taining the certificates required to be filed with the 
employer before a child may legally begin to work. 
In Pennsylvania, the parent was required merely to 
make oath as to the age of the child before any 
notary, and, until May, 1905, the affidavit thus made 
protected the employer against prosecution for viola- 
tion of the child labor law, while the parent was nom- 
inally liable to the charge of perjury if the age of the 
child was falsely stated. 

In New York, since 1896, the affidavit of the par- 
ent is only one of three assurances of the child's age 
and qualifications which must be included in the cer- 
tificate deposited with the manufacturer. The pa- 
rental oath must be supplemented by the written 
statement of the teacher that the child has regularly 
attended a school in which instruction is given in 
reading, writing, arithmetic, geography and English 
grammar ; and this must be farther strengthened by 
the statement of the officer of the board of health, 
who alone can issue the certificate, that he is satisfied 
that the child is fourteen years of age. 

This provision, in force from 1896 to 1903, has 
now been supplanted by a more drastic one. In the 
years 1896-1900, however, the threefold requirement 
probably contributed to keep down the number of 
working children in New York compared with the 
lax issuance of affidavits by notaries in Pennsylvania, 
with no other check than the fear of a remotely pos- 

72 



CHILD, STATE AND NATION 

sible prosecution of the parent on tlie charge of 
perjury. 

Briefly stated, the differences appear to be these. 
In. Pennsylvania, a child of thirteen years could, 
until May, 1905, work in a mill at night without 
breaking the law. In New York, a child may not 
begin to work under the age of fourteen years ; an 
illiterate child may not work under the age of sixteen 
years ; and a minor under eighteen years may not 
work after nine o'clock at night in manufacture. 
Moreover, the factory law is better reenforced by the 
compulsory education law in New York than in 
Pennsylvania. 

In New York for several years preceding the cen- 
sus year, 1900, children between the ages of twelve 
and fourteen years were required to attend school 80 
days in the year. The Board of Health of New 
York City refused to issue certificates to such as 
had failed to complete the 80 days' attendance in the 
year preceding the fourteenth birthday, sending such 
children back to school to finish the uncompleted 
term. 

In Pennsylvania, children were, in the same years 
before 1900, merely required to attend school 70 per 
cent, of the school term in the district in which they 
resided. 

The results of these differences in the child labor 
law and the compulsory education law are reflected 
in two other tables of the Census of 1900 (printed 
elsewhere in this chapter) according to which New 
York had 4,740 illiterate children between the ages 
of ten and fourteen years, compared with 6,326 such 

73 



SOME ETHICAL GAINS 

children in Pennsylvania; and New York ranks 
fourteen in the scale of fifty-two states and terri- 
tories when measured by the percentage of children 
between these ages who are able to read and write, 
while Pennsylvania is number twenty in the same 
scale. 

The statistics of these two leading manufacturing 
states are discussed thus in detail because they indi- 
cate both the need of farther legislative protection 
for the children, and the gain which has already been 
made in New York by the long enforcement of the 
imperfect provisions of the earlier laws. For ten 
years, beginning in 1893, New York is believed to 
have been the only state which required children 
under the age of sixteen years to be able to read 
fluently and write legibly simple sentences in the 
English language before permitting them to begin to 
work for wages. The practical working of this pro- 
vision was illustrated when the first suit vmder it was 
brought against a clothing contractor in New York 
City who had violated the law by employing a Rus- 
sian girl fifteen years of age who could neither read 
nor write in any language. Six weeks elapsed 
after the arrest of the employer and the dismissal of 
the child from work, before the case came up for 
trial before the magistrate. The judge dictated to 
the girl : "This house is built of bricks," by way of 
a simple sentence to be written legibly. The child 
promptly wrote: "This hous is bilt of briks," and 
the case was dismissed. The inspector, angry at los- 
ing his case, and puzzled at the child's speedy ac- 
quisition of the English language in words of one 

74 



CHILD, STATE AND NATION 

syllable, made some investigation of the circum- 
stances and learned that, on the day following the 
girl's dismissal from employment, she had entered 
the public school, attending both the day and even- 
ing sessions. She had also attended two different 
Sunday schools, one in the morning and one in the 
afternoon, and had taken books from the library. 
Thus, in the space of six weeks, by specializing 
strictly upon learning English, she had saved her 
employer a heavy fine, and had prepared herself to 
resume her work in his shop according to the re- 
quirement of the law. 

Recently the new statutes which require more edu- 
cational preparation for work, prescribing that every 
boy must attend day school until the work of the fifth 
year of the public school is finished and night school 
to the sixteenth birthday or the completion of the 
work of the eighth year, have brought to light sev- 
eral instances of the padrone system within the 
families of immigrants, 

A man and his wife imported a sister aged fifteen 
years from Italy for the purpose of securing for the 
wholly illiterate girl immediate work in a silk-mill. 
When it became clear that the child would not be 
ready to comply with the new educational require- 
ments within a year the intention of the relatives was 
betrayed by their cruel treatment of the dependent 
girl. 

There could scarcely be more undesirable immi- 
grants than half-grown, illiterate children brought 
into the congested manufacturing centers by their 
sordid relatives for the express purpose of crowding 

75 



SOME ETHICAL GAINS 

into factories and sweat-shops. It is a most valuable 
function of child labor legislation to discourage the 
immigration of families coming to this country for 
the purpose of exploiting their children in the tex- 
tile mills, the street trades and other undesirable 
occupations. However welcome immigration may 
be to the employers and the transportation com- 
panies, it is a valuable addition to the national life 
only so far as the immigrant children can be made 
into trustworthy American citizens. To check that 
form of the padrone system which consists in bring- 
ing young sisters-in-law and brothers-in-law to this 
country for the purpose of sending them into silk- 
mills, or hiring them out to master boot-blacks under 
the pretense that they are dependent orphans, is one 
of the beneficent functions of compulsory education 
laws and child labor laws, — though of course a 
merely incidental feature of such legislation. The 
correspondence between the Italian and Russian 
colonies in America, and the relatives remaining in 
the old country, is so continuous, that the new educa- 
tional requirements of the State of New York will 
be well known on the other side of the ocean within 
a year and may well be regarded as one of the wisest 
forms of restriction upon undesirable immigration. 
The state of New York welcomes immigration on 
the largest scale that the world has ever beheld. But 
it humanely insists that the immigrant must meet the 
terms prescribed by the state, which include main- 
taining his children until they can read and write 
English, even though that keep them at school and 
away from work until the sixteenth birthday. 

76 



CHILD, STATE AND NATION 

The same general result was observed in Chicago, 
in the fall of 1903, after the enactment of a similar 
provision in Illinois. A professional beggar was 
seen taking his children to school. A friendly 
visitor who had labored in vain for seven years to 
induce him to let them go to school, was greatly in- 
terested in the change and, on inquiring about it, was 
told by the beggar that the children would soon be 
old enough to go to work, but would not be granted 
the necessary papers unless they had proper certifi- 
cates of school attendance. The statute thus reen- 
forces the parental sense of duty when that is under 
the heaviest pressure of temptation to exploit young 
children, in a strange land, in dire poverty, in the 
helplessness of illiterate adults out of work and in 
need of reenforcement of all kinds. 

A comparison of the status of child labor in 
Massachusetts and in Pennsylvania confirms the 
opinion that legislation has long been gradually bene- 
fiting both the children and the community just in 
proportion as it has been effectively stringent. It is 
not accidental that Massachusetts had in 1900 12,556 
children in her mills compared with 33,135 in Penn- 
sylvania. The textile industry in both states calls 
for children. In Massachusetts, the public con- 
science has registered gradually throughout a series 
of years, and the restraints imposed by frequently 
amended legislation have kept the number of work- 
ing children from growing rapidly. In Pennsyl- 
vania there were, until May. 1905. only the most 
meager changes in the factory law since its enact- 
ment in 1889. In Massachusetts, a child cannot 

71 



SOME ETHICAL GAINS 

legally work in a mill under the age of fourteen 
years. In Pennsylvania, it could, until May, 1905, 
legally enter a mill on the thirteenth birthday, and 
defects in the wording of the law facilitated perjury 
to such an extent that children were found in textile 
mills and tobacco factories at the age of ten years. 
In Massachusetts, a woman or minor under eighteen 
years of age cannot legally work in a mill after ten 
o'clock at night; but in Pennsylvania whosoever 
could work at all, could work all night, little girls 
only thirteen years of age included. In this respect 
Pennsylvania compared unfavorably, as has been 
pointed out, with Alabama, whose new law restricts 
to eight hours at night the work of children between 
the ages of thirteen and sixteen years. It is not gen- 
erally known that there was a serious danger to little 
girls arising from the custom, which prevailed in 
some Pennsylvania mills where night-work was 
done, of turning the children out into the dark, at 
midnight during the warm weather, just as em- 
ployees are expected to go forth at noon when work- 
ing on the day shift. The associations of such little 
girls, at such hours, in such surroundings, are a fit 
subject, not only for painful contemplation, but for 
the most vigorous action of all persons interested in 
the prevention of one of the direst forms of cruelty 
to children. 

Undeterred by the competition of textile mills in 
less progressive states, as, for instance, Pennsyl- 
vania and Rhode Island, Massachusetts excelled all 
rivals in her statutory care for children employed in 
manufacture, from 1874 to 1903. In the latter year 

78 



CHILD, STATE AND NATION 

New York and Illinois enacted laws which went be- 
yond the provisions of Massachusetts, both in the 
educational requirements exacted of children before 
going to work, and in the hours of their labor. 

In 1904, Governor Bates appointed a Committee 
on the Relations of Employer and Employee, con- 
sisting of Carroll D. Wright, United States Commis- 
sioner of Labor, Davis R. Dewey, of the Massa- 
chusetts Institute of Technology, Henry Sterling, 
Royal Robbins and William N. Osgood. These 
gentlemen embodied in their report, dated January 
13, 1904, a series of recommendations with regard 
to the employment of children which, if enacted into 
law, would still leave Massachusetts fourth in rank 
among the states when ranged according to the 
length of the working day permitted to children 
under the age of sixteen years. They say : "From 
such inquiries as we have been able to make we do 
not believe that the manufacturing interests of the 
state would be seriously affected by the extended pro- 
hibition of night labor after 7 p. m. to all children 

under sixteen years of age The arguments 

in favor of shutting children out from night- work 
are so obvious that they do not need extended discus- 
sion, nor does it appear that one kind of employment 
should be favored as against another. The physical 
and moral advantages to be gained by exclusion from 
night-work are common to all children. We there- 
fore recommend that no children under sixteen years 
be permitted to engage in any gainful occupation be- 
tween 7 o'clock in the evening and 6 o'clock in the 
morning." 

79 



SOME ETHICAL GAINS 

The extended restriction of the hours of young 
mercantile employees to 58 in one week during the 
month of December became law in 1904, but children 
may still be employed in stores and mills to ten 
o'clock at night provided they do not work more than 
58 hours in the week. 

The significant point is that the Committee^ does 
not recommend that the hours of labor of children be 
at once reduced to eight in one day as in Illinois, or 
to nine in one day as in New York and Delaware, or 
to fifty-five in one week as in New Jersey. On the 
contrary, the Committee said : "Inasmuch as the 
labor of children in some industries interlocks with 
the labor of adults who now work ten hours per day, 
we fear that such restriction would practically result 
in the discharge of children from employment. 
Such an outcome would be unfortunate, unless chil- 
dren were forced to attend school by a change in the 
compulsory school law already referred to. We 
therefore do not favor consideration of legislation 
further limiting the number of hours of labor until 
that question is reported upon by the State Board of 
Education." 

It is never to be forgotten that, hitherto, Massa- 
chusetts has fearlessly gone forward in her course 
of educating and protecting her children regardless 
of the action of other states and their competing in- 
terests. Neither, however, is it to be forgotten that 
there are now more spindles in the cotton industry 
south of Mason and Dixon's line than north of that 

'^Report of Committee on Relations of Employer and Em- 
ployee, 1904, Boston, pp. 32, 33, 34. 



CHILD, STATE AND NATION 

line; and that the pressure of Southern competition 
renders it increasingly difficult to maintain the posi- 
tion already achieved by Massachusetts. The en- 
forcement of existing requirements becomes more 
burdensome as the reductions in wages of adults 
incite parents to perjured affidavits stating that chil- 
dren are older than they really are, in order to add 
the child's wage to the decreasing family income, 
and the force of the statute is thus undermined. 
--' Inter-State Aspect of the Right to Childhood. 
— Hitherto the right to childhood has been consid- 
ered in the light of the experience of children in cer- 
tain occupations, and in the light of the legislative 
provisions of certain states for protecting children 
from too early toil. The broader question, what the 
people of this nation as a whole are doing to assure 
to the Republic, a generation hence, an intelligent 
citizenship, has scarcely been formulated. The ques- 
tion is, however, compendiously answered by two 
tables of the United States Census of 1900, which 
have not yet received that general and widespread 
discussion which their significance renders im- 
perative. 

The first table shows the percentage of children 
between the ages of ten and fourteen years who were 
able to read and write, in 1890 and in 1900. Except 
Nevada, whose Indian children were first included in 
1900, all the states have been reducing the percentage 
of illiteracy. The figures upon which the percent- 
ages are based are given in a second table, wherein 
the states are twice arranged, once alphabetically and 
again in the order of the ability of the children to 
6 81 



SOME ETHICAL GAINS 



1890 

Iowa 

Massachusetts . . 

Ohio 

Kansas 



99-23. 
99.17- 
98.92. 
98.86. 



read and write, those states being grouped at the top 
which have the least number of illiterate children and 
those states grouped at the bottom which have the 
largest number of illiterate children. 

Per Cent. Able to Read and Write Among Persons id to 
14 Years of Age 
7900 

1. Nebraska 99.66 

2. Iowa 9963 

3. Oregon 99.58 

4. Ohio 99.51 

5. Kansas 99-48 

6. Indiana 99-45 

7. Connecticut 99.43 

8. Utah 99-34 

9. Massachusetts .... 99.33 
ID. Michigan 99-30 

11. Washington 99-30 

12. Minnesota 99-29 

13. Wisconsin 99-27 

14. New York 99.26 

15. IlHnois 99.18 

16. Wyoming 99.08 

17. Vermont 99-05 

i8. South Dakota .... 99.00 

19. California 98.99 

20. Pennsylvania 98.99 

21. New Jersey 98.81 

22. Idaho 98.77 

23. Colorado 98.48 

24. New Hampshire . . 98.31 

25. Dist. of Cokimbia.. 98.25 

26. Rhode Island 98.12 

27. Montana 98.07 

28. Maine 97-92 

29. North Dakota 97-65 

30. Oklahoma 97.26 



Connecticut 98.79. 

Illinois 98.75. 

Nebraska 98.75. 

New York 98.62. 8 

Wisconsin 98.35. 9 

Minnesota 98.21. 10 

Oregon 98.20. 1 1 

]\Iichigan 98.17. 12 

Indiana 98.00. 13 

California 97-93- 14 

New Jersey 97.86. 15 

Pennsylvania 97-82. 16 

Washington 97-75- 17 

Maine 97-57- 18 

Vermont 97-57- 19 

South Dakota .... 97.55. 20 

Colorado 97-21. 21 

New Hampshire . . 96.63. 22 

Montana 96.47. 23 

Utah 96.24. 24 

Wyoming 96.23. 25 

Idaho 96.18. 26 

Rhode Island 96.03. 27 

North Dakota 95.58. 28 

Dist. of Columbia. 94.61. 29 

Missouri 94-48- 30 



82 



CHILD, STATE AND NATION 



1900 

31. Missouri 96.64 

32. Delaware 9549 

2Z- Maryland 95.36 

34. West Virginia .... 94.74 

35. Nevada 91.88 

36. Kentucky 91-56 

2,7. Texas 90.74 

38. Florida 86.24 

39. Tennessee 85.08 

40. Virginia 84.33 

41. Arkansas 83.80 

42. New Mexico 80.07 

43. North Carolina . . . 78.25 

44. Arizona 77-79 

45. Mississippi 77-62 

46. Georgia 77.21 

47. Indian Territory.. . 75.61 

48. Alabama 71. 11 

49. South Carolina . . . 70.44 

50. Louisiana 67.12 



1890 

Nevada 92.83. 31 

Oklahoma 91.81. 32 

Delaware 90.96. 33 

Maryland 90.54. 34 

West Virginia 89.16. 35 

Texas 85.55. 36 

Kentucky 85.17. 37 

Florida 82.43. 38 

Tennessee 80.94. 39 

Arizona 79.62.40 

Arkansas 77 89. 41 

Virginia 77-32. 42 

Mississippi 73.47. 43 

New Mexico 72.04. 44 

North Carolina . . . 69.38. 45 

Georgia 66.73. 46 

Alabama 64.50. 47 

South Carolina . . . 61.03. 48 

Louisiana 57-26. 49 



CENSUS 1900 

(Population, Vol. II, Part II, Table 65— pp. 422) 

Illiterate Children Between the Ages of id and 14 



Years in Each State 



Alabama 66,072 i 

Alaska 1,903 2, 

Arizona 2,592 3 

Arkansas 26,972 4 

California 1,279 5 

Colorado 742 6 

Connecticut 433 7 

Delaware 845 8 

Dist. of Columbia.. 398 9 

Florida 8,389 10 

Georgia 63,329 11 

Hawaii 394 12 

83 



Wyoming 

Oregon 

Idaho 

Utah 

Nevada 

Vermont 

Washington 

Montana 

Hawaii .... 

Dist. of Columbia. 

Nebraska 412 

Connecticut 436 



72 

175 
209 
220 

275 
287 
340 
374 
394 
398 



SOME ETHICAL GAINS 



14. 

15- 
16. 

17- 
18. 
19. 
20. 
21. 
22. 

23- 
24. 

25- 

26. 



Idaho 209 13- 

Illinois 4,044 

Indiana 1,453 

Indian Territory.... 12,172 

Iowa 883 

Kansas 878 

Kentucky 21,247 

Louisiana S5,69i 

Maine 1,255 

Maryland 5,859 

Massachusetts i,547 

Michigan i,74-l- 

Minnesota 1,365 

Mississippi 44,334 

Missouri 11,660 

Montana 374 

Nebraska 412 

Nevada 275 

New Hampshire . . . 557 

New Jersey 2,069 

New Mexico 4,354 

New York 4740 

North Carolina .... 51,190 

North Dakota 836 

Ohio 2,048 

Oklahoma 1,295 

Oregon I75 

Pennsylvania 6,326 

Rhode Island 691 40. 

South Carolina .... 5^,536 4i- 

South Dakota 472 42. 

Tennessee 3^,375 43- 

Texas 35,49i 44- 

Utah 220 45. 

Vermont 287 46. 

Virginia 34,6i2 47- 

Washington 340 48. 

West Virginia 5,819 49. 

84 



27. 

28. 

29. 

30. 

31- 

32. 

33- 

34- 

35. 

36. 

37- 

38. 

39- 



South Dakota .... 472 

New Hampshire.. 557 

Rhode Island 691 

Colorado 742 

North Dakota ... 836 

Delaware 845 

Kansas 878 

Iowa 883 

Maine 1,255 

California 1,279 

Oklahoma 1,295 

Minnesota 1,365 

Indiana 1,453 

Massachusetts 1,547 

Wisconsin 1,688 

Michigan i,744 

Alaska 1,903 

Ohio 2,048 

New Jersey 2,069 

Arizona 2,592 

Illinois 4.044 

New Mexico 4,354 

New York 4.740 

West Virginia . . . 5,819 

Maryland 5,859 

Pennsylvania 6.326 

Florida 8,389 

Missouri 11,660 

Indian Territory.. 12,172 

Kentucky 21,247 

Arkansas 26,97? 

Virginia 34,6i2 

Texas 35,491 

Tennessee 36,375 

Mississippi 44,334 

North Carolina . . 51,190 

South Carolina . . 51,536 



CHILD, STATE AND NATION 

Wisconsin i,688 50. Louisiana 55.691 

Wyoming ^2 51. Georgia 63.329 

52. Alabama 66,072 

United States 579,947 JJnited States 579,947 

The vitally significant fact revealed by the first 
table is the fall in the scale, between 1890 and 1900, 
of the six great industrial states when measured by 
the percentage of literacy of their children between 
the ages of ten and fourteen years. 

When measured by the value of their manufac- 
tures, New York, Pennsylvania, Illinois, Massa- 
chusetts, Ohio, and New Jersey stand af the head of 
the scale of the states in the order in which they are 
here printed. When measured by the percentage of 
their children between the ages of ten and fourteen 
years able to read and write, in 1900, these states 
rank altogether differently. Thus New York, in- 
stead of being first is fourteenth ; Pennsylvania, 
instead of being second, is twentieth ; Illinois, in- 
stead of being third, is fifteenth ; the other three are 
Massachusetts, ninth ; Ohio, fourth ; and New Jersey, 
twenty-first. Nor is their position in this scale either 
stable or improving. On the contrary, all the six 
great states fell from a better relative position during 
the ten years from 1890 to 1900. In 1890, New 
York occupied the eighth place, Pennsylvania the 
sixteenth, Illinois the fifth, Massachusetts the second, 
Ohio the third, and New Jersey the fifteenth. All 
alike have fallen relatively to the western states (Ne- 
braska, Oregon, Indiana, Utah and Washington), 
which have correspondingly risen. 

Pennsylvania and New Jersey seem to have com- 
85 



SOME ETHICAL GAINS 

peted for the place of dishonor at the foot of the Hst 
of the six great industrial states. Pennsylvania oc- 
cupied that position in 1890, being then sixteenth in 
the scale of all the states, and sixth and last of the 
great industrial states. In 1900, New Jersey had 
sunk from the fifteenth to the twenty-first place, and 
now ranks one point below Pennsylvania, when 
measured by the percentage of her children between 
the ages of ten and fourteen years of age who are 
able to read and write. 

The relative fall of Massachusetts from the second 
to the ninth place in the scale may be due to several 
causes. The influx of French Canadian, Portu- 
guese, Italian, Russian, and Syrian children of the 
ages between ten and fourteen years is large, and 
would doubtless continue to depress the position of 
Massachusetts in the table under consideration. 
Moreover, Massachusetts was slow to raise the legal 
age for beginning to work to fourteen years, and to 
make attendance at school compulsory throughout 
the full school year to the fourteenth birthday. Not 
until 1905 did Massachusetts prohibit the employ- 
ment of illiterate children before the sixteenth 
birthday. 

Discouraging is the position in the first table of the 
four great Southern cotton manufacturing states in 
which large numbers of young children are employed 
in manufacture. In none of the four are eighty per 
cent, of the children between ten and fourteen years 
of age able to read and write. Of the four, North 
Carolina stands highest, as number forty-three in the 
scale; followed by Georgia, forty-six; Alabama, 

86 



CHILD, STATE AND NATION 

forty-eight, and South Carolina, forty-nine. Lowest 
in the scale is Louisiana, fifty. Only one of them 
has risen. North Carolina, which stood forty-five 
in 1890, stands forty-three in 1900. 

An interesting ray of light upon the child-labor 
problem shines from the first table. The six great 
industrial states whose descent in the scale it regis- 
ters, are exceptionally wealthy and progressive in all 
other respects, but they are the chosen home of child 
labor on a large scale. 

The first table thus confirms the opinion that child- 
labor and illiteracy are coextensive, and that all these 
factors, far from being local and to be dealt with by 
a small group of Southern states, form a great and 
growing series of national problems. The four 
great manufacturing states of the South stand at the 
foot of the scale of states when graded according to 
the ability of children between the ages of ten and 
fourteen years to read and write ; and the six great 
industrial states of the North are falling in that 
scale, simultaneously and conspicuously. Surely 
there is need of organized effort, national in scope, to 
ascertain the cause of so sinister a phenomenon, and 
to remove that cause with the least possible loss of 
time. 

In the second table there are many significant 
points, one being the position of the six leading 
manufacturing states, New York, Pennsylvania, Il- 
linois, Massachusetts, Ohio and New Jersey, all 
nearer the bottom of the scale than the top, with the 
single exception of Massachusetts which is twenty- 
sixth in the scale of fifty-two. The other five are 

87 



SOME ETHICAL GAINS 

all in the third group, ranking as follows : Ohio, 
thirty; New Jersey, thirty-one; Illinois thirty-three; 
New York, thirty-five; and Pennsylvania, thirty- 
eight. 

When placed according to the actual number of 
her illiterate children, Pennsylvania stands lowest 
among the six leading manufacturing states and 
ranks with the states of the South, coming after 
Maryland and West Virginia and next above 
Florida. 

Taken together, the six leading manufacturing 
states had, in 1900, 20,774 illiterate children between 
the ages of ten and fourteen years, distributed as fol- 
lows: 

Massachusetts 1,547 

Ohio 2,048 

New Jersey 2,069 

Illinois 4,044 

New York 4,740 

Pennsylvania 6,326 

Total 20,774 

It is, of course, to be observed that the six leading 
manufacturing states receive a vast immigrant popu- 
lation. One conclusion derivable from the table 
seems, therefore, to be this : that since these states 
attract immigrants whose children tend to remain il- 
literate, it is necessary to take energetic measures for 
dealing with those children ; such, for instance, as 
the requirement that they must learn to read and 
write English before leaving school to begin to work. 
It is conceivable that such a requirement, universally 
and effectively enforced, might permanently remove 

88 



CHILD, STATE AND NATION 

one incentive to immigration on the part of the least 
desirable immigrants — ;'. c, the hope for wages to be 
earned by illiterate young children. 

In this table, as in the percentage table, it is the 
great cotton states of the South which constitute the 
foot of the scale, North and South Carolina, Louis- 
iana, Georgia and Alabama. 

The more closely the two lower groups of states 
are scrutinized, the clearer the inference becomes that 
the problem of child labor and child illiteracy are 
twin problems, and that together they demand for 
their solution no mere sectional effort, but the vigor- 
ous determination of the whole people that the years 
of childhood shall be held sacred to the work of edu- 
cation, free from the burden of wage-earning. 

The states which stand at the foot of the scale in 
both tables are Arkansas, Virginia, North and South 
Carolina, Mississippi, Louisiana, Georgia and Ala- 
bama. These states have no compulsory education 
laws. They are the states which are commonly 
designated as the "New South" in discussions of in- 
dustrial development, particularly in the cotton 
industry. In them manufacture increases by leaps 
and bounds while legislation lags behind. As has 
been pointed out, Georgia deliberately voted at two 
sessions of the legislature of 1903 to adopt a position 
ethically lower than that of England at the time of 
the enactment of Sir Robert's Peel's act, in 1802. 
The new laws of North and South Carolina, Ala- 
bama and Virginia approximate closely to the factory 
acts of England in 1842, except that the English laws 
provided for factory inspectors, which the Southern 

89 



SOME ETHICAL GAINS 

states have not yet done. It is with the competition 
of such communities that Massachusetts has to do 
when her Committee on the Relations of Employer 
and Employee recommend the consideration of the 
feasibility of raising the age for compulsory school 
attendance to fifteen years, and defer recommending 
any shortening of the hours of labor of children be- 
yond the limit of fifty-eight hours in one week. In 
view of facts like these, the child labor problem can 
never again be regarded as a local problem. It is 
the problem of the nation as a whole. 

The foregoing somewhat desultory observations 
upon the effort made to establish the right to child- 
hood, reveal how far the whole still falls short of 
any clear policy of cherishing all future citizens as 
such in the interest of the Republic. 

All legislation thus far has been a series of com- 
promises achieved by stirrings of the public con- 
science concerning some one enormity here and 
there. On one side the demands of employers for 
cheap labor are reenforced by the pressing poverty 
of parents ; and on the other, there has until recently 
been only the inarticulate child, not always even 
aware of the injury he was suffering. Then came 
the trade union eager to be rid of the child in indus- 
try, perhaps for the child's good, perhaps in the in- 
terest of better wages for the adult competitors. 
Only sadly recently has the philanthropist come for- 
ward as a person to be reckoned with, and last of 
all, the purchaser of the product, demanding the priv- 
ilege of buying with a clear conscience the goods for 
which he pays. 

go 



CHILD, STATE AND NATION 

The resultant patchwork quilt of statutes leaves 
the children unprotected, as has been shown, in many 
places, and is nowhere adequate to the needs of the 
children and the rapid development of industry. It 
is the purpose of the following pages to suggest what 
seems reasonable to strive for during the decade 
1900-1910. 

Legislation Needed in the Near Future. — First 
of all desiderata is uniformity among the states on 
the basis of the best which has yet been achieved in 
the most enlightened communities. For lack of uni- 
formity, progress has been hindered in many states, 
notably in the glass industry which, during 1904, 
successfully represented to the legislature of New 
Jersey that, if deprived of the privilege of employing 
boys under the age of sixteen years at night, it would 
migrate to Delaware and West Virginia, where no 
such restrictions yet await it. 

In the interest of uniformity, it seems most prac- 
ticable to adopt as the minimum age for beginning 
work, the fourteenth birthday, while endeavoring to 
bring to this minimum all the children now engaged 
in street occupations, hitherto exempt from restric- 
tions in nearly all states ; and endeavoring, also, to 
bring to this minimum the statutes of those states 
which, as yet, prescribe no minimum age (Georgia), 
or a minimum age of ten years (Nebraska), or 
twelve years (Alabama, Louisiana, I\Taine, New 
Hampshire, North Carolina, North Dakota, Texas, 
and Virginia), or thirteen years (Rhode Island). 

No one acquainted with the diminutiive stature of 
city children of the working class at fourteen years 

91 



SOME ETHICAL GAINS 

of age, can regard the adoption of this standard mini- 
mum age for beginning work as final. It is merely 
the best attainable for the present and the immediate 
future, in the evolution of child labor legislation. 

In the century since the movement for child labor 
laws began with Sir Robert Peel's act, in 1802, effort 
has been devoted chiefly to placing about the labor of 
children restrictions based upon age or school at- 
tendance; and these have been found unsatisfactory 
by reason of the willingness of parents to perjure 
themselves. It is the tendency of the present to con- 
sider the fitness of the child itself for the prospective 
occupation. Under the present statute of New 
York, for instance, a child must be "of normal de- 
velopment and in sound health" before receiving the 
certificate of the local board of health without which 
it cannot legally begin to work. 
/As has been shown, effective legislation involves 
the child, the parent, the employer, the officials 
charged with the duty of enforcing the statutes, and 
the community which enacts the laws, provides the 
schools for the children when these are prohibited 
from working, supports and authorizes the officers 
who enforce the laws, prescribes penalties for their 
violation and assists dependent families in which 
children are below the legal age for work. In the 
long run, the effectiveness of the laws depends upon 
the conscience of the community as a whole far more 
than upon the parents and the employer taken 
together. 

With the foregoing reservations and qualifications 
duly recognized, the following schedules are be- 

92 



CHILD, STATE AND NATION 

lieved to outline the substance of the effective legis- 
lation which it seems reasonable to try to secure in 
the immediate future. They deal only with the pro- 
visions for the child as a child, taking for granted 
the provisions for fire-escapes, safe-guards for ma- 
chines, toilet facilities and all those things which the 
child shares with the adults. 

An effective child labor law rests upon certain pro- 
hibitions, among which are the following : 

Labor is Prohibited 

( 1 ) for all children under the age of fourteen years, 

(2) for all children under sixteen years of age who 

do not measure sixty inches and weigh eighty 
pounds,^ 

(3) for all children under sixteen years of age who 

cannot read fluently and write legibly simple 
sentences in the English language, 

(4) for all children under the age of sixteen years, 

between the hours of 7 p. m. and 7 a. m., or 
longer than eight hours in any twenty-four 
hours, or longer than forty-eight hours in 
any week, 

(5) for all children under the age of sixteen years 

in occupations dangerous to life, limb, health 
or morals. 

The Child 
Effective legislation requires that before going to 

* This measure is not now specified in any statute, though it 
is implied in the statute of New York, enacted in 1903. Bills 
specifically embracing this provision were introduced into the 
legislatures of Iowa and Louisiana in 1904. 

93 



SOME ETHICAL GAINS 

work the child satisfy a competent officer appointed 

for the purpose, that it 

(i) is fourteen years of age, and 

(2) is in good health, and 

(3) measures at least sixty inches and weighs eighty 

pounds, and 

(4) is able to real fluently and write legibly simple 

sentences in the English language, and 

(5) has attended school a full school year during 

the twelve months next preceding going to 
work. 

The Parent 
Effective child-labor legislation requires that the 
parent 

(i) keep the child in school to the age of fourteen 
years and longer if the child has not com- 
pleted its required school work, and 

(2) take oath as to the exact age of the child before 

letting it begin to work, and 

(3) substantiate the oath by producing a transcript 

of the official record of the birth of the child, 
or the record of its baptism, or some other 
religious record of the time of the birth of 
the child, and must 

(4) produce the record of the child's school attend- 

ance, signed by the principal of the school 
which the child last attended. 
The Employer 
Effective child-labor legislation requires that the 
employer before letting the child begin to work, 
( I ) obtain and place on file ready for official inspec- 
tion papers showing 

94 



CHILD, STATE AND NATION 

(a) the place and date of birth of the child 

substantiated by 

(b) the oath of the parent corroborated by 

(c) a transcript of the official register of 

births, or by a transcript of the record 
of baptism, or other religious record 
of the birth of the child, and by 

(d) the school record signed by the principal 

of the school which the child last at- 
tended, and by 

(e) the statement of the officer of the board 

of education designated for the pur- 
pose, that he has approved the papers 
and examined the child. 

(2) After permitting the child to begin to work, the 

employer is required to produce the fore- 
going papers on demand of the school- 
attendance officer, the health officer and the 
factory inspectors. 

(3) In case the child cease to work, the employer 

must restore to the child the papers enumer- 
ated above. 

(4) During the time that the child is at work, the 

employer must provide suitable seats, and 
permit their use so far as the nature of the 
work allows ; and must 

(5) post and keep posted in a conspicuous place, 

the hours for beginning work in the morning, 
and for stopping work in the middle of the 
day ; the hours for resuming work and for 
stopping at the close of the day ; and all work 
done at any time not specified in such posted 
95 



SOME ETHICAL GAINS 

notice constitutes a violation of the law. 
The total number of hours must not exceed 
eight in any one day or forty-eight in one 
week. 

The Officials 
Effective legislation for the protection of children 

requires that the officials entrusted with the duty of 

enforcing it 

(i) give their whole time, not less than eight hours 
of every working day, to the performance of 
their duties, making night inspections when- 
ever this may be necessary to insure that chil- 
dren are not working during the prohibited 
hours ; and 

(2) treat all employers alike, irrespective of polit- 

ical considerations, of race, religion or power 
in a community ; 

(3) prosecute all violations of the law; 

(4) keep records complete and intelligible enough 

to facilitate the enactment of legislation suit- 
able to the changing conditions of industry. 

The School 

The best child-labor law is a compulsory education 
law covering forty weeks of the year and requiring 
the consecutive attendance of all the children to the 
age of fourteen years. It is never certain that chil- 
dren are not at work, if they are out of school. In 
order to keep the children, however, it is not enough 
to compel attendance, — the schools must be modified 
and adapted to the needs of the recent immigrants in 
the North and of the poor whites in the South, af- 

96 



CHILD, STATE AND NATION 

fordingf instruction which appeals to the parents as 
worth having, in lieu of the wages which the children 
are forbidden to earn, and appeals to the children as 
interesting and attractive. These requirements are 
so insufficiently met in the great manufacturing cen- 
ters of the North, that truancy is in several of them, 
at present, an insoluble problem. No system of 
child-labor legislation can be regarded as effective 
which does not face and deal with these facts. 

The evolution of the vacation school and camp and 
play centers promises strong reenforcement of the 
child-labor laws, which are now seriously weakened 
by the fact that the long vacation leaves idle upon the 
streets children whom employers covet by reason of 
the low price of their labor, while parents, greedy for 
the children's earnings and anxious lest the children 
suffer from the life of the streets, eagerly seek work 
for them. Nothing could be worse for the physique 
of the school child than being compelled to work 
during the summer; and the development of the 
vacation school and vacation camp alone seems to 
promise a satisfactory solution of the problem of the 
vacation of the city child of the working class. 

The Community 

Effective child-labor legislation imposes upon the 
community many duties, among which are 
(i) maintaining officials — men and women — school- 
attendance officers, health officers, and fac- 
tory inspectors, all of whom need 
(a) salary and traveling expenses, 
7 97 



SOME ETHICAL GAINS 

(b) access at all reasonable times to the 

places where children are employed, 

(c) power to prosecute all violations of the 

statutes affecting working children. 

(d) tenure of office so effectively assured 

that they need not fear removal from 
office in consequence of prosecuting 
powerful offenders; 

(2) maintaining schools in which to educate the 

children who are prohibited from working ; 

(3) maintaining vital statistics, especially birth 

records, such that the real age of native chil- 
dren may be readily ascertained ; 

(4) maintaining provision for the adequate relief of 

dependent families in which the children are 
not yet of legal age for beginning work. 

More important, however, than the enactment of 
the foregoing provisions is the maintenance in the 
community of a persistent, lively interest in the en- 
forcement of the child-labor statutes. Without such 
interest, judges do not enforce penalties against of- 
fending parents and employers ; inspectors become 
discouraged and demoralized ; or faithful officers are 
removed because they have no organized backing 
while some group of powerful industries clamors 
that the law is injuring its interest. Well-meaning 
employers grow careless, infractions become the rule, 
and workingmen form the habit of thinking that laws 
inimical to their interest are enforced, while those 
framed in their interest are broken with impunity. 

Upon parents there presses incessant poverty, urg- 
ing them to seek opportunities for wage-earning 



CHILD, STATE AND NATION 

even for the yonng-est children ; and upon the em- 
ployers presses incessant competition, urging- them to 
reduce the pay-roll by all means fair and foul. No 
law enforces itself; and no officials can enforce a law 
which depends upon them alone. It is only when 
they are consciously the agents of the will of the 
people that they can make the law really protect the 
children effectively. 

A United States Commission for Children. — If 
the right to childhood is recognized, it follows that 
the welfare of the children is a legitimate interest of 
the nation, for the right rests upon the future citizen- 
ship of the children. The interest of the nation, as 
such, has not hitherto found articulate expression, 
and it is desirable that it should do so. It is there- 
fore suggested that there be constituted a Commis- 
sion for Children, whose functions should be to cor- 
relate, make available, and interpret the facts con- 
cerning the physical, mental and moral condition and 
prospects of the children of the United States, native 
and immigrant. 

The proposed commission might be composed of 
men and women, representing different parts of the 
country, for the purpose of promoting the vital and 
social efficiency of the children of the United States. 
It should do for the states, cities and smaller com- 
munities what the Department of Agriculture does 
for the farmers, — make accessible to them the latest 
word of science and the latest methods of applying it. 
The commission might cooperate with the Bureau of 
Education, for instance, in disseminating facts as to 
the grades in the public schools from which the chil- 

99 



SOME ETHICAL GAINS 

dren leave, and the age of the children at the time of 
leaving, in the different parts of the country ; it 
might cooperate with the Bureau of Labor in popu- 
larizing the principles upon which child-labor legis- 
lation should be further developed ; and with the Cen- 
sus Bureau in focusing attention upon the fact that 
in 1900 there were in the Republic 579,947 illiterate 
children between the ages of ten and fourteen years, 
of whom about 510,000 are in thirteen states, and the 
remaining 70,000 are scattered throughout the re- 
mainder of the United States. For lack of a recog- 
nized national official body devoted to all the inter- 
ests of the children, the facts gathered by the three 
above named departments remain uncorrelated and 
largely unused. If they are applied at all, it is by 
volunteer organizations which exist in some states 
and are lacking in others, and any results obtained, 
therefore, benefit the children in a part of the coun- 
try, but not in the whole country. 

The problems suggested as forming, at first, the 
probable field of work of the Commission are all 
vital to the welfare of the Republic. They are inter- 
related in such complex ways that it is very difficult 
to state them in logical order. The following list is 
purely tentative and is framed in the hope that it 
may suggest constructive criticism. 

Problems 

1. Infant Mortality. 

2. Registration of Births. 

3. Orphanage. 

4. Desertion. 

100 



CHILD, STATE AND NATION 

5. Illcj:^itimacy. 

6. Deg^cncracy (sub-normal cliiklhood). 

7. Delinquency. 

8. Offenses against Children. 

9. Illiteracy. 
10. Child labor. 

The imperative need of such a commission be- 
comes apparent as soon as the first problem, infant 
mortality, is named. If lobsters or young salmon 
become scarce or are in danger of perishing, the 
United States Fish Commission takes active steps in 
the matter. But infant mortality continues exces- 
sive, from generation to generation, in perfectly well- 
defined areas ; — yet no one" c'g^i^ of the mtional 
government is interested in the matter sufficiently 
even to gather, collate- iind' jMiblish cor.§eK:\:tive' in- 
formation about this social phenomenon. On the 
contrary, infant mortality, however excessive, con- 
tinues to be generally regarded as a matter safely 
left to the local officers whose incompetence or lack 
of legal power it proves. Mere constructive criti- 
cism from an authoritative source, consecutively af- 
forded by the proposed commission, could not fail 
to have a stimulating effect upon such local officials. 

Orphanage is now generally recognized as a phe- 
nomenon social and permanent. To it is due much 
pauperism, delinquency and permanent degeneracy 
among children. It is a matter of national impor- 
tance that continuous investigations should be car- 
ried on covering methods of safeguarding adult life; 
— insurance, pensions for widows with young chil- 
dren, adoption of total orphans, asylums and 

lOI 



SOME ETHICAL GAINS 

methods of boarding out children. The children 
are the future Republic, the orphans no less than 
those who have parents ; and the maintenance of 
their vital efficiency is no less essential than the care 
of fish, forests and Indians by the United States Gov- 
ernment. 

With the development of disease and accidents in- 
cident to occupations the number of fatherless chil- 
dren in the working class increases. No employers' 
liability legislation yet devised has made adequate 
provision for the maintenance of surviving little 
children of workmen who perish. 

Desertion and illegitimacy are phenomena which, 
from the child's pomt of 'view, are to be classed with 
orphanage. It is desirable that methods of enforcing 
pater.nal. re^jpon'^ibihty- should be devised to relieve 
the community of the support of children thus 
cruelly and unnaturally fatherless. 

The allied problems of orphanage, desertion and il- 
legitimacy connect on the one hand with the protec- 
tion of life, limb, health and morality of the adult 
workers ; and on the other with child labor, illiteracy, 
degeneracy and delinquency. 

While a few cities have established children's 
courts devoted to the decision of cases affecting chil- 
dren, and probation officers for the care of juvenile 
delinquents, it remains true that, in by far the larger 
part of the country, the stockade or the county jail 
is a school of crime for first offenders. On the other 
hand, the widely prevalent method of crowding de- 
pendent and delinquent children together in institu- 
tions promotes both dependency and delinquency; 

102 



CHILD, STATE AND NATION 

while the reckless placing^ out of children at a dis- 
tance from their own original homes has its own seri- 
ous dangers. The indifference of local authorities 
to these subjects of vital importance to the rising 
generation is due chiefly to ignorance of better ways. 
But the desultory propaganda of volunteer bodies is 
inadequate to securing within any calculable time, 
improvements which might readily and rapidly be 
brought about by the dissemination, with method 
and continuity, of the needed information by a Com- 
mission for Children. 

Child labor can never again be regarded as a mat- 
ter of local interest in a few states, with cotton mills 
in the South, and canneries from Maine to the 
Pacific, employing children at all hours, in ever- 
increasing numbers as the industries develop. The 
lack of legislation in one state renders it excessively 
difficult to establish protective restrictions upon work 
in another state having the same industries ; — and 
the worse inevitably checks progress in the better. 

It is, at present, impossible to secure comprehen- 
sive, trustworthy, current information as to the con- 
ditions of labor of children in the different states, ex- 
cept by having recourse to some volunteer 
organization which, in turn, secures its facts by 
correspondence with the officials of fifty-two states 
and territories. Moreover, the publications of pri- 
vate societies cannot assure the continuity of investi- 
gation which a Commission could give. It is be- 
lieved that the consecutive publications by a Com- 
mission, of the child-labor laws of the difi'erent states 
in popular form (as the Department of Agriculture 
103 



SOME ETHICAL GAINS 

furnishes in popular form information needed by 
farmers), as rapidly as the laws are modified, might 
be the means of securing approximately uniform 
legislation in this important field within a few years. 
The foregoing list of problems with the comments 
upon them, are, of course, mere suggestions of what 
a Commission would find awaiting it in the way of 
investigation and dissemination of information on 
behalf of the future citizens of the Republic. 
Obviously the creation of such a Commission will 
mark one more important recognition of the right to 
childhood and will register one more ethical gain. 



104 



CHAPTER 111 

THE RIGHT TO LEISURE 

The effort to establish the right to leisure was a 
distinctive movement of the nineteenth century, ac- 
companying the development of machinery. It as- 
sumed Protean forms, among others that of Sunday 
rest, the Saturday half-holiday, Decoration Day, 
Labor Day, Lincoln's Birthday, Washington's Birth- 
day, St. Patrick's Day, Good Friday, and Easter. 
The early closing of the stores, wherever accom- 
plished, is one result of this effort. The prohibition 
of the work of women and minors at night was^an 
important aspect of the movement, and the effort on 
behalf of child labor legislation is largely directed 
towards securing fourteen free years for school and 
wholesome growth before children enter upon the 
life of steady work. In its most virile form, the 
effort to establish the right to leisure was known as 
the ten hours movement, and later as the eight 
hours movement. 

America having produced no great philanthropic 
leader devoted to securing leisure for the young and 
defenseless workers, no Lord Shaftesbury, the task 
of establishing their right went by default to the 
trade unions, to whom is due the credit for all child 
labor legislation prior to the year 1889. Now, how- 
105 



SOME ETHICAL GAINS 

ever, the effort has become national in its scope, 
enhsting the most diverse advocates. Mr. Grover 
Cleveland and other members of the National Child 
Labor Committee, and the General Federation of 
Women's Clubs, in striving to stop the work of 
children at night in manufacture and commerce, are 
as truly enlisted in behalf of the right to leisure as 
are the miners in Colorado, the butchers in Chicago, 
and the garment workers in New York. The Na- 
tional Educational Association, working to prolong 
the period of compulsory attendance at school, and 
the National Congress of Mothers, with its standing 
committee on child labor, are pledged to the same 
endeavor. To educate the purchasing public to act 
in considerate recognition of the right of the clerks 
to leisure is one of the reasons for being of the 
Consumers' League. However different the meth- 
ods of these diverse organizations, their goal is the 
same, — the establishment of reasonable daily leisure 
in the lives of working people. 

The Supreme Court of the United States has 
made plain the way by sustaining the constitution- 
ality of statutes establishing the working day of 
eight hours for persons in the employ of the federal 
government, m the employ of states or municipali- 
ties under contract, and in the employ of corpora- 
tions where the nature of the occupation may be in- 
jurious to health. 

The establishment of universal leisure is increas- 
ingly recognized as a social aim, an effort to be par- 
ticipated in by all those who care for the social wel- 
fare, and as a national effort, snice, under the pres- 
io6 



THE RIGHT TO LEISURE 

sure of competition, the conditions prevailing in any 
industry must be as nearly uniform as possible, 'and 
one part of the country cannot long maintain itself 
far in advance of a different part having identical 
industries, a truth which finds conspicuous illustra- 
tion in the experience of New England suffering 
under the pressure of competition of the textile mills 
of Georgia. 

The struggle for the shorter working day is com- 
monly described as the effort of the laborer to give 
as little exertion as possible in return for the pay 
which he receives and many workingmen passively 
accept this statement of the animus of their move- 
ment. It is, however, susceptible of interpretation 
as the effort of wage-earning people to obtain, in 
the form of leisure, a part of theii share of the uni- 
versal gain arising from the increased productivity 
of every occupation, and due to the incessant im- 
provement of machinery. 

Obviously the characteristic feature of the indus- 
trial life of the nineteenth century was the unprece- 
dented increase in the output of all branches of 
production. Human needs were satisfied as never 
before ; famine was restricted before the close of the 
century to portions of Russia and India, where mis- 
government and imperfect means of transportation 
together prevented the adequate production and cir- 
culation of foodstuffs. Clothing and fuel of new 
and abundant kinds removed the fear of destruction 
by cold. Shelter for people of all sorts and condi- 
tions underwent transformations undreamed of in 
previous centuries. The fundamental ethical ques- 
107 



SOME ETHICAL GAINS 

tion of the century was, in essence, the equitable 
distribution of these newly acquired possessions of 
the human race. 

More precious, perhaps, than any of those enu- 
merated is the immaterial, imponderable human by- 
product, — leisure. Once the heritage and dis- 
tinctive privilege of a small class in any civilized 
community, leisure was produced during the nine- 
teenth century in such abundance as to become the 
accepted right of a large proportion of the people. 
Yet, by reason of its inequitable distribution, it re- 
mained, in the crude and unsocial form of unem- 
ployed time, the bane and sorrow of large sections 
of the working-class, who were constrained to de- 
vote generations of organized effort to regulating, 
equalizing, and redistributing their working-time 
and their free time, endeavoring to transmute acci- 
dental, unsocial idleness into regulated and benefi- 
cent daily leisure. ^^ 
>j\(jPv -Assured daily leisure is an essential element of 
healthy living. Without it childhood is blighted, 
perverted, deformed ; manhood becomes ignoble and 
unworthy of citizenship in the Republic. Self-help 
and self-education among the wage-earners are as 
dependent upon daily leisure as upon daily work. 
Excessive fatigue precludes the possibility of well- 
conducted meetings of classes, lodges, cooperative 
societies and all other forms of organized effort for 
self-improvement. No experience of residents in 
settlements in the congested districts of the great 
cities is sadder than the disorganization which be- 
falls their evening clubs and classes when Christmas 
1 08 



THE RIGHT TO LEISURE 

approaches and the ablest younc^ people are detained 
for overtime work, the study and effort of the other 
members is disorganized, and failure of the whole 
undertaking often follows. 

As machinery becomes increasingly automatic, 
and the work of the machine-tender reduces itself 
more completely to watching intently the wholly 
monotonous performance of the one part confided 
to his care, leisure becomes indispensable for him in 
order to counteract the deadening effect upon his 
mind exercised by his daily work. Instead of edu- 
cating the worker, the breadwinning task of to-day 
too often stupefies and deforms the mind ; and 
leisure is required to undo the damage wrought in 
the working-hours, if the worker is to remain fit for 
citizenship in the Republic. Without regular, or- 
ganized leisure, there can be no sustained intelli- 
gence in the voting constituency. 

In those occupations in which long hours of work 
prevail, the employees are obliged to live near their 
place of work, and that congestion is thus intensified 
which is one of the more unfortunate features of 
life in large manufacturing cities. Shortening the 
hours of labor gives to working people a wider 
range of selection in the location of their homes, 
thus benefiting wives and children as well as the 
operatives themselves. 

Daily assured leisure serves a purpose of the 
highest social value by enabling the wage-earner to 
husband that resource of nervous energ}^ which is 
required to continue active working-life after the 
passing of youth. In the garment-trades, men are 
109 



SOME ETHICAL GAINS 

old at forty and women are superannuated at thirty, 
largely by reason of the alternations of overwork 
and enforced idleness, and the absence of that regu- 
larly recurring sufficient period of rest between the 
close of one day's work and the beginning of the 
next, which alone permits body and mind to bear 
years of continuous work without wearing out. 
Premature old age is induced by overwork as ef- 
fectively as by dissipation ; and old age in the wage- 
earning class means dependence, if not pauperism. 
To assure a regular period of fifteen hours between 
one day's work and the next for young women and 
girls engaged in manufacturing and commerce 
would undoubtedly do as much to prolong their 
years of self-support and diminish their period of 
enforced dependence upon others as any measure 
avowedly in the interest of hygiene and public well- 
being which could be enacted. 

The philanthropic world is all astir on behalf of 
the crusade against tuberculosis. Funds are readily 
forthcoming for the foundation of sanatoria for the 
use of working people, especially for young girls 
and children. But tuberculosis is promoted by over- 
work as much as by any other single cause. To 
shorten the hours of daily labor, to afford daily 
leisure for rest and recreation to young employees 
during the years of life in which the susceptibility 
to infection is greatest, years which coincide with 
the term of employment of girls and women in 
largest numbers, is quite as clearly a life saving 
service as to build and maintain sanatoria. More- 
over, the loss of time involved in recovery from 



THE RIGHT TO LEISURE 

tuberculosis is accompanied by expenses to the pa- 
tient, her family and the community which might 
well all be spared, were the young worker permitted 
to escape this enforced idleness by enjoying in due 
time a rational measure of daily rest and freedom. 

Vice flourishes wherever self-support for honest 
working-women is unusually difficult, and the 
sweating-system is breaking down to an alarming 
degree, in New York City, that domestic righteous- 
ness which, for thousands of years, has distin- 
guished the people of Jewish faith. To establish 
effective restrictions upon the hours of labor in 
the needle-trades would equalize the burden borne 
by these workers, spreading work over more days 
and weeks, granting more daily leisure, and thus 
making righteous living easier for tens of thousands 
of young working people whose traditions are en- 
tirely honorable, but who are now subjected to a 
pressure to which all too many victims succumb. 

It may be fairly claimed, then, thatihe establish- 
ment of regular daily leisure contributes to the 
health, intelligence, morality, lengthened trade life, 
freer choice of home surroundings, thrift, self-help 
and family life of working people. Granted that 
not all workers make equally valuable use of free 
time, just as members of the leisure class vary in the 
uses to which they apply their leisure, it remains 
true that, without free time, these benefits are im- 
possible. To be deprived of leisure is to be de- 
prived of those things which make life worth living. 

Leisure seems to have come to dififerent groups 
of people in different ways ; — to some automatically 



SOME ETHICAL GAINS 

without exertion on their part; to others as the 
result of long, painful struggle ; to many not at all. 
The portion of society to which leisure has not 
come consists, on the one hand, of the great body of 
children and young girls in the textile and other in- 
dustries in states in which no laws yet define the 
limit of their working day and working week ; and, 
on the other hand, of the mass of unskilled work- 
ingwomen as unorganized and defenseless as the 
children themselves. 

The Unsought Leisure of Prosperous Women. 
— The people to wdiom leisure has come unsought, 
a free gift of the new industrial order, are the 
women in prosperous circumstances. Never before 
in the history of civilization have women enjoyed 
leisure comparable to that which now falls to the 
lot of those in comfortable circumstances in Amer- 
ica. . The modern conveniences of the city or sub- 
urban home reduce to a minimum the unavoidable 
exertion (except such as is demanded by aseptic 
cleanliness enforced by the fear of disease germs in 
dust and all that harbors dust!). For the prosper- 
ous housekeeper flowing water, gaslight and elec- 
tricity, modern facilities for heating and cooking, 
foods prepared outside the home, garments bought, 
whether ready-made or made to order, — all these 
contrivances, together with the exodus of the home- 
industries, yield to women a leisure which they ac- 
cept as an unqualified right. The wives of tens of 
thousands of business men and well-paid employees 
enjoy unquestioningly, and as a matter of course, a 
degree of leisure such as formed the exclusive 



THE RIGHT TO LEISURE 

privilege of a small aristocracy in earlier centuries. 
The beneficent social and philanthropic activities of 
public spirited women and the baneful epidemic of 
gambling at cards which has run riot for several 
years and shows no tendency to diminish, are twin 
offspring of this unearned leisure. . 

As employers of labor in the home, women have 
been called upon to share with their domestic em- 
ployees some of the new-found leisure, and they 
have not always discerned the importance of recog- 
nized and regulated free time at the disposal of the 
employee as an element in determining the quality 
of the "help" available in the labor market which 
they frequent. Sunday rest, the Saturday half- 
holiday, early closing, and the prohibition or re- 
striction of evening work, have contributed to make 
work in manufacture or commerce more attractive 
to large classes of young girls in highly developed 
industrial communities, than household labor with 
its indeterminate hours. And where women as em- 
ployers have discerned the intimate relation between 
the industrial life about them and the domestic life 
under their own roof, they have naturally viewed 
with a critical eye that tendency towards work in 
other forms of industry in preference to housework, 
which presses with ever increasing effectiveness 
upon their personal arrangements. 

Women in their homes, in the full enjoyment of 
leisure as a human right which no one disputes, see 
from afar and often unsympathetically the effort of 
the wage-earners to secure for themselves similar 
leisure, either by means of statutory provisions or 
8 113 



SOME ETHICAL GAINS 

by trade-agreements. It requires cultivation of the 
imagination to enable women thus fortuitously en- 
dowed with leisure to perceive an organic relation 
between their own possession of it and the pro- 
ductive activity of other women, and of children, in 
the manufacture and distribution of many things 
which were formerly prepared within the home ; to 
make the connection between this free gift of the 
new industrial order to themselves and the struggle 
of the garment-workers, for instance, to secure by 
organization and trade agreements, and by statutes, 
the assurance that the needle-workers need not work 
more than eight hours in one day^^ The conductor 
of a railway train has regular "runs" upon which he 
can count in advance, and in accordance with which 
he arranges his seasons for sleeping, eating and 
recreation. His wife enjoys the leisure which has 
come to her unsought. He can understand the 
effort of the garment-workers to maintain their or- 
ganization in its most militant form, because he as- 
sures the permanence of his own leisure by helping 
to sustain his own organization with its trade agree- 
ments. But his wife cannot so readily understand 
or sympathize with the motive of the garment- 
workers, because the leisure which distinguishes her 
from her great-grandmother has come to her 
through no effort of her own, but automatically by 
the introduction of mechanical improvements and 
by the exodus of the industries from the home. It 
may be urged that the leisure of prosperous women 
is only apparent; that each improvement has en- 
tailed fresh duties of administration ; that the stand- 
114 



THE RIGHT TO LEISURE 

arcl of living has been so raised that their time is as 
fully occupied as it ever was. From the economic 
point of view, however, the new occupations are 
distinctly of the leisure type, — not of any recognized 
productive or distributive type. 

To the credit of women of the prosperous class it 
must be said that, within recent years, many of them 
have been making active and intelligent efforts to 
establish legal claims to leisure for children and for 
women industrially employed. The Saturday half- 
holiday, the summer vacation for clerks, the child 
labor laws, and the prohibition of work at night for 
women and children have had no more faithful ad- 
vocates among the wage-earners themselves than 
among members of the Consumers' League, the 
Church Association for Improving the Condition of 
Labor and the women's clubs. Just in proportion 
as women who enjoy leisure in their homes come to 
see how far they owe that enjo}ment to the work of 
other people, and to recognize the just claims of 
those others to a share of leisure, may we reason- 
ably expect that the number and effectiveness of 
such organizations will multiply. And it will ap- 
pear in the course of the present discussion that the 
need for such organizations is an abiding need, aside 
from the maintenance of the organizations of the 
workers themselves. 

The share of credit due to these participants in 
the efifort to establish the right to leisure is the 
greater because, in their capacity as housekeepers, 
they come into contact with precisely that portion of 
the working-class whose method of establishing 
115 



SOME ETHICAL GAINS 

leisure for themselves appears to be most trying. 
Gas-fitters, plumbers, carpenters, upholsterers, 
paper-hangers, plasterers, painters, and glaziers 
have not, on the whole, distinguished themselves, in 
recent years, by that sweet reasonableness which 
might have ingratiated them and their cause with 
families whose homes have needed alterations and 
repairs. And the ability of thousands of house- 
mothers to rise above their personal grievances and 
advocate a reform the attendant disadvantages of 
which they have been made to feel in no gentle 
manner, speaks well for the intelligence and the 
principle of modern women. 

Enforced Idleness is not Leisure. — In some oc- 
cupations the nature of the work to be done involves 
interruptions which force the workers to await the 
resumption of activity ; and these interruptions may 
be welcome and beneficent, or they may be veritable 
paths to destruction, their effect depending upon the 
circumstances under which the working people are 
able to meet them. 

Thus the sailor spends weeks on land in enforced 
idleness through no choice of his own but because 
the vessel must load and unload, or must await the 
regular day of sailing. Jack ashore afifords the 
classic example of the workingman harmed by un- 
organized and, therefore, unprofitable, if not ac- 
tively injurious, idle time as contrasted with regular, 
organized, beneficent leisure. No stronger argu- 
ment need be found for the statutory establishment 
of daily leisure for employees in all trades in which 
that is possible, than the evils entailed upon sailors 

ii6 



THE RIGHT TO LEISURE 

by the impossibility of distributing their idle time in 
ways wholesome for themselves. 

The long leisure of the northern farmer's winter, 
recurring and regularly prepared for, has, without 
doubt, contributed much to the general high level of 
intelligence and character among the native popula- 
tion of New England and the Northwest. The 
picture of the boy Lincoln studying by the light of 
the fire on the hearth gripped the imagination of 
the American people because it appealed to the per- 
sonal experience of a multitude to whom the leisure 
of the hearthstone was the earliest recollection. The 
sharpest possible line of demarcation divides citi- 
zens whose experience includes the long country 
winter from those city-bred, to whom the seasons 
mean little more than the change from the exhaus- 
tion of summer heat to a more bracing atmosphere, 
the round of their work having no relation to the 
visible order of nature, and their leisure being as- 
sured them by circumstances unrelated to the time 
of year. The farmer's family, accustomed to work 
without ceasing at the harvest, as they rest at length 
during the winter (both experiences being dictated 
by the nature of the work to be done and the season 
of the year, over which they have no control), can- 
not readily understand why thousands of tailors 
should strike for months together, at the height of 
the season, in the hope of working an hour a day 
less throughout the following year. 

Yet it is by no means accidental that, in the gar- 
ment-trades, strikes habitually have to do with the 
maintenance of a trade organization, or with the 
117 



SOME ETHICAL GAINS 

hours of labor, because the garment-workers, more 
than any other wage-earners, suffer the disadvan- 
tages both of overwork and of unemployment. The 
garment-workers endure the "dull season" because 
garments vary with the season and orders are 
"slack" or "rush" without reference to the prefer- 
ence of the needle-workers. One part of their year 
brings with it overwork such as occurs in no other 
occupation, while another entails idleness on the 
hardest terms known to modern industry. The 
tailors' long struggle to distribute their w^ork over 
the longest possible series of weeks, by shortening 
each working day to ten, nine, or eight hours is, in 
essence, a struggle to attain reasonable leisure in 
place of deadly haste followed by weeks or months 
of corroding idleness. 

While the winter leisure of the farmer is made 
safe by the assured supplies of food, fuel and shelter 
prepared in advance for the season's need, the an- 
nually recurring dull season in the garment-trades 
is a period of anxiety and suffering, when the 
grocer's bill grows as large as his good will ven- 
tures to permit, and eviction from their tenement- 
dwelling is a calamity to be expected and endured 
by the garment-workers' families as the fortune of 
war. In this there is no element of wholesome 
leisure. The words "dull season," originally re- 
ferring to the state of the trade from the employers' 
point of view, describe but faintly the black despair 
which that season, under the sweating-system, in- 
volves for the workers in the garment-trades. 

In the needle-trades half the employees are wom- 
ii8 



THE RIGHT TO LEISURE 

en, young, non-voting, temporary members of the 
body of wage-earners pending marriage or disabil- 
ity. No part of the industrial army grows so rap- 
idly as the contingent of young girls between four- 
teen and twenty years of age ; and no part is so void 
of initiative for its own welfare, so unfit to assert or 
maintain any right. Beginning w'ork at the age of 
folly, they readily accept as the regular working 
day ten hours in twenty-four, increasing this to any 
length allowed by the statutes, and working fre- 
quently without extra pay merely under the threat 
of dismissal in case of their refusal. Of their own 
initiative, these young needle-workers would never 
secure the half-holiday, a summer vacation with or 
without pay, or even the enforcement of the legal 
restriction upon their regular working time. They 
are a perpetual hindrance to the efforts of the men 
who work with them to secure stable employment 
and reasonable leisure. Overwork seems to come 
to these girls as blindly as leisure has befallen the 
women in the wxll-to-do households. 

In the needle-trades, the effectual establishment 
of the legal working day and working week serves, 
wherever this has been accomplished, as for instance, 
in Massachusetts, to mitigate both the enforced 
overwork and the enforced idleness which charac- 
terizes those trades when left to the free play of 
industrial forces. Where the working time is 
eft'ectively limited, preparations are made systemat- 
ically, in advance of the height of the season, for 
meeting the coming pressure. Space and machin- 
ery are provided, and extra hands are trained, by 
119 



SOME ETHICAL GAINS 

preparing stockwork, for the finer work to be de- 
manded of them later. Thus some of the unem- 
ployed are temporarily absorbed into the regular 
industrial army, and the contrast between the ex- 
tremes of the seasons is mitigated. 

It is evident upon close acquaintance that in the 
garment-trades the injurious differences of season 
are only in part due to the conditions inherent in the 
trades themselves. They are not like the midwinter 
cold and midsummer harvest heat in the experience 
of the farmer. They are far more subject to control 
than the managers of the industry have ever been 
willing to admit. Moreover, the general purchas- 
ing public has vastly more power of initiative, con- 
trol and restraint than it has ever been aware of, by 
means of the placing of "rush" orders, on the one 
hand, and of voluntarily regulating the times of its 
buying on the other. This has already been indi- 
cated in the matter of Christmas shopping and its 
bearing upon the cruel overwork of children at that 
season. The garment workers are not so obviously 
present as the children in the stores, and it requires, 
therefore, more sympathetic imagination to enable 
the shopping public to make the connection between 
the excessive exertion which alternates with ruinous 
idleness of the machine workers, and its own heed- 
less crowding of the shopping season into a few 
weeks in the spring and fall. 

Increased Speed Calls for Leisure. — In the ca- 
pacity of inspector for the National Consumers' 
League it has been the fortune of the writer to visit 
and inspect a large number of factories in the 

120 



THE RIGHT TO LEISURE 

stitched muslin underwear trade during the past five 
years. In the course of that time there has oc- 
curred a development of machinery so significant in 
its consequences as to seem worth describing some- 
what at length as a concrete illustration of the 
process which is discussed more abstractly through- 
out the present chapter. In all the best factories 
within this trade the speed of the sewing-machines 
has been increased so that they set, in 1905, twice 
as many stitches in a minute as in 1899. jMachines 
which formerly carried one needle now carry from 
two to ten, sewing parallel seams (for bones in 
waists, or for tucks, or merely for decorative stitch- 
ing). Thus a girl using one of these machines is 
now responsible for tw^ice as many stitches at the 
least and for twenty times as many stitches at most, 
as in 1899. Some girls are not capable of the sus- 
tained speed involved in this improvement, and are 
no longer eligible for this occupation. Those who 
continue in the trade are required to feed twice as 
many garments to the machine as were required five 
years ago. The strain upon their eyes is, however, 
far more than twice what it was before the im- 
provement. In the case of machines carrying mul- 
tiple needles this is obvious; but it is true of the 
single-needle machines also. It is the duty of the 
operator to watch the needle so intently as to discern 
the irregularity caused by a broken thread or broken 
needle, and to stop the machinery by pressing an 
electric button before any threads are cut by the 
broken needle, or any stitches of the seam are 
omitted because of the broken thread. Now, when 



SOME ETHICAL GAINS 



the needle set twenty-two hundred stitches a minute, 
as was the case in 1899, the writer, whose eyes are 
unusually keen, could see the needle when the ma- 
chine was in motion. At the present speed, the 
writer, whose eyes have remained unimpaired, is 
wholly unable to see the needle, discerning merely 
the steady gleam of light where it is in motion. To 
meet this difficulty, which occurs regularly in the 
case of the operatives, it is now the custom to sus- 
pend an electric light directly above the machine, so 
that a ray strikes the needle. The strain upon the 
eyes of the operators is almost intolerable, and a 
further winnowing-out of the women eligible for 
this occupation follows the introduction of the pres- 
ent method of lighting. 

It is reasonable to inquire what benefit accrues to 
a machine operator who completes twice as much 
work in 1905 as in 1899, and the writer has made 
this inquiry whenever opportunity has offered. On 
the whole, it appears that there has been no propor- 
tionate gain for the operator. If all the gain that is 
made by the improvement in the machines went to 
the operators in the form of increased wages, it is 
doubtful whether it would be compensation for the 
additional strain upon their eyes and nerves. But 
no such share of gain falls to them. Their wages 
are calculated upon the same basis as in 1899, 
namely, that employees of the required speed and 
skill can be obtained in the required number for six 
dollars a week, irrespective of their output of work. 
In conversation with employers the writer is as- 
sured, from time to time, that piecework prices are 



THE RIGHT TO LEISURE 

regularly calculated to afford a total of six dollars a 
week for skilletl workers, the stock phrase being: 
"If a girl cannot earn six dollars a week at machine 
work after she has been doing it from six weeks to 
three months, she is not adapted to the work, and it 
is better to put another girl at her machine." On 
the part of the girls the statement is very generally 
made that, in places in which the supply of help is 
abundant, the proportion of girls receiving less 
than six dollars is kept large by constantly changing 
hands, dismissing those whose wages are growing 
higher with increasing skill, and taking on begin- 
ners. Combined with this constant changing goes 
a frequent rearrangement of piecework prices, such 
that only a small minority of the girls in a factory 
ever rise above the dead level of six dollars a week, 
the same sum that was paid in 1899 for half the 
work now done. 

One skilled worker who left a factory for four 
years and returned to the same machine which she 
had left, found it speeded up to double its former 
capacity. Her work was doubled, but her wages in- 
creased only from six dollars a week to seven, 
though she was one of the most skilled persons in 
her trade, an experienced, strong, willing operator. 
This girl w'as asked who, in her opinion, profited by 
the doubling of the output of her machine. In re- 
ply she said: "I get a dollar a -week more. The 
company makes something out of the improvement, 
or they would not have made it. But there have 
been so many cuts in prices that the company don't 
get as much as you'd think for doubling the speed 
123 



SOME ETHICAL GAINS 

of the machines, I guess the people that buy the 
garments must get most of the difference ; they can 
get so many more garments for the same money." 

There is no doubt that this sewing girl was en- 
tirely correct in her estimate of the effects of 
doubling her work. The purchaser, in the long 
run, profits by every improvement in machinery and 
in the speed of the workers. But the girls who 
stitch underwear are not only working the same 
number of hours as in 1899 ; they are wearing them- 
selves out at a rate of speed such that the term of 
their whole working-life must inevitably be greatly 
shortened. The nervous energy required from day 
to day is more than can be supplied by the free time 
between one day's work and the next. A phrase in 
which they commonly describe the experience of 
girls who have dropped out of the trade tells the 
whole story: ''She got too slow, — she couldn't 
keep up with her machine any longer." 

There is no immediate prospect of any material 
improvement in the money wages paid to operators 
in this trade; for the employers have at command, 
not only tenement-house workers and institutions 
maintained out of the public funds and, therefore, 
willing to do sewing for merely nominal compensa- 
tion ; they have also the pupils of the many charit- 
able and reformatory schools which persist in pre- 
paring every available girl for this most undesirable 
of all skilled occupations. Since the wages of the 
sewing machine operators are determined, not pri- 
marily by the amount of their output, but by many 
other considerations (the pressure of the tenement- 
124 



THE RIGHT TO LEISURE 

house workers, the institution workers, and the re- 
cruits in the trade sent out from the institutions, 
etc.), there seems to be no need to fear that they 
would lose in wages if their hours of labor were 
reduced by the enactment of a statute restricting 
their working time to eight hours in one day and 
forty-eight in one week. In the interest of their 
health this change appears to be indispensably 
necessary. It has been, however, impossible for 
them to make any permanent improvement in the 
conditions of their employment by unaided effort of 
their own. There is no inclination visible on the 
part of employers to reduce the hours of work. On 
the contrary, the manufacture of stitched white 
muslin underwear has become as completely a sea- 
son trade as the preparation of Christmas tree dec- 
orations or Easter bonnets. Meanwhile, the num- 
ber of years during which a girl can continue to 
earn a living at a sewing machine diminishes with 
every improvement in her machine. 

Methods of Establishing the Right to Leisure. 
— By the education of public opinion something has 
been accomplished towards establishing leisure in 
certain occupations. Thus an appeal has of late 
been made, with promise of increasing success, to 
the more kind-hearted and conscientious among the 
stockholders of Southern cotton-mills to vote their 
stock in ways calculated to obtain more humane 
hours of labor for the women and children employed 
in those mills. The hours of labor of the clerks and 
cash children in the stores of many cities have been 
improved in consequence of the efforts of the Con- 
125 



SOME ETHICAL GAINS 

sumers' Leagues in some places, and of the Retail 
Clerks' Protective Associations in others, to induce 
the shopping public to exercise consideration of the 
employees in arranging the hours of shopping. 

The cigar-trade has long enjoyed the benefits of 
the short working day by reason of the relatively 
successful effort of the cigarmakers to apply in 
practical form the principle which all trade unionists 
acknowledge, and upon which thousands of them 
conscientiously act. Millions of dollars have been 
spent in advertising their label ; cigars bearing it are 
made only in shops in which the working day is 
limited to eight hours; and working men of all 
trades have taken the trouble to give the preference 
in buying the cigars thus recommended. Here, 
therefore, the establishment of leisure for the work- 
ers has been accomplished by the effort of the work- 
ers themselves. The limitations inherent in this 
method appear, however, when certain large em- 
ployers, selling cigars to customers not interested 
in the subject, employ young girls who are not part 
of any organization, and can be induced to work as 
long as the law allows. It is an interesting and sig- 
nificant fact that the organizations mentioned as 
using this method are among the most persistent 
advocates of legislation restricting the hours of 
labor, acting on the principle that not one but all 
methods of protecting the workers in their right to 
leisure must be followed, and taught by experience 
how far more effective is their effort when directed 
towards the enforcement of statutes than when con- 
^ned to persuasion alone. 
126 



CHAPTER IV 

JUDICIAL INTERPRETATION OF THE RIGHT 
TO LEISURE 

The right to leisure has long been striven for by 
means of trade agreements between employers and 
employees, and of statutes, state and federal. The 
statutes are many and diverse, but those with which 
the present discussion is concerned are of three 

kinds: p^A^Jj^ 

Statutes stipulating the hou rs^of wor k of public 
servants, as letter carriers and printers in the gov- 
ernment printi ng offi ce ; 

Statutes restricting the hours of labor of women 
and children ; 

Statutes which are now for the first time upheld 
by the courts, restric^g, in certain occupations, in 
the interest of^ the public he^alth, the hours of labor 
of adult male employees working for corporations 
or individual employers. 

Until it has been sustained by the Supreme Court 
of the United States, a statute is merely a trial draft, 
the enactment of which is but the first step in its 
development into valid law. In discussing the gains 
which have been made in the direction of establish- 
ing the right to leisure, it is, therefore, necessary to 
consider the leading cases which determine the 
127 



SOME ETHICAL GAINS 

line of progress.^ Two cases decided by state 
courts of last resort are still effective in preventing 
the enjoyment of the right to leisure by wage-earn- 
ers in those states, although the Supreme Court of 
the United States has, in regard to the subject mat- 
ter of each decision, subsequently pronounced in 
favor of the constitutionality of the statutory right ; 
and it is, therefore, reasonable to believe that, in the 
course of time, the state courts will reverse their 
present positions. These are the cases of Ritchie 
vs. the People (Supreme Court of Illinois, March 
5, 1895), and the People vs. the Orange County 
Road Construction Company (April 25, 1903, Court 
of Appeals of New York). 

The Right to Leisure Accorded to Public 
Servants. — The government of the United States, 
in the year 1892, recognized the right to leisure by 
limiting to eight hours in one day the working time 
of laborers in its employment. 

Since that time it has paid extra for overtime 
work. The same right is recognized for many 
thousand employees directly engaged in the service 
of states and municipalities. In all these cases the 
hours of labor are restricted by statute, state or 
federal, enacted through the exertions of the em- 
ployees themselves or of men engaged in the same 
or kindred work. 

^ These are Holden vs. Hardy (\J. S. Supreme Court, Feb. 
28, 1898) ; Atkins vs. the State (U. S. Supreme Court, Oct. 
Term, 1903) ; Lochner vs. New York (U. S. Supreme Court, 
April 19, 1905) ; and that older decision which sustained the 
federal act of 1S92 limiting to eight hours the working day of 
persons employed under contract directly by the Government 
of the United States. 

128 



JUDICIAL INTERPRETATION 

No claim has been made that it would necessarily 
injure the health of the adult employees engaged in 
these occupations to work more than eight hours in 
a day. It is, however, their preference to work no 
longer than that. They are politically powerful 
enough to establish their preference by procuring 
legislation ; and in the case of the printers, they have 
established the right before the Supreme Court of 
the United States. The work of the nation, the 
states and the municipalities appears to be done, on 
the whole, satisfactorily to the people and to the 
employees. Such scandals as have arisen in the 
public service seem to have had no relation to the 
daily work of the rank and file. 

It is worthy of note that these employees are 
engaged at work in which they are subject to no 
pressure of competition from women and children. 
The moderate hours of w^ork doubtless explain, in 
part at least, the eagerness of men to secure public 
employment, even where defective civil service laws 
make promotion excessively difficult and give the 
public servant scant hope of any considerable in- 
crease in his remuneration. 

Convinced of the advantage derived by men in 
the direct employ of the various governments, fed- 
eral, state and municipal, from the short working 
day prescribed by law, many trade organizations 
have long and persistently striven to secure from 
Congress and from state legislatures, laws requiring 
that contractors employed by the government shall 
be bound by the terms of their contracts to limit the 
day's work to eight hours. The workingmen insist 
9 129 



SOME ETHICAL GAINS 

that work for a government contractor is indirectly 
work for the government, and should be performed 
upon the same terms, assuring to the worker the 
same advantages. As government contracts ramify 
into ever-increasing series of industries, such stat- 
utes would establish the usage of the shorter work- 
ing day to an extent and in directions little foreseen 
by those who are not personally interested in the 
subject. 

The unimagined ramifications of the work of the 
United States Government done under contract may 
be indicated by the fact that the writer has seen 
letter pouches, for the use of the United States rail- 
way mail service, sewed by small boys detained in a 
reformatory institution for young children carried 
on by a religious sect, at the cost of the treasury of 
the city of New York. The government contract 
had been awarded to a manufacturer who had 
farmed out a part of it under the sweating-system, 
to be executed by child labor, under conditions 
deemed wholly inadmissible by enlightened modern 
opinion. This ramification of government contract 
work into the sewing trades, the sweating-system, 
and the perversion of child-saving philanthropy is 
cited merely to intimate how far reaching, in its 
potential beneficent effects, is the effort of the work- 
ingmen to secure statutory provision that, in all 
contracts for government work, the right to leisure 
shall be recognized by a stipulation binding the con- 
tractor to the working day of eight hours. 

The effort thus to secure statutory recognition of 
their right to daily leisure when employed indirectly 

130 



JUDICIAL INTERPRETATION 

by the government through contractors, is made as 
vigorously by men in industries in which trade 
agreements arc available as in other trades. From 
their long, persistent effort for this legislation, it ap- 
pears that they recognize the desirability of statu- 
tory recognition of the right, as contrasted with the 
conquest of leisure, in each individual case, by 
means of trade agreements. 

Viewed as an infringement of his freedom of 
contract, the workingman's eagerness for statutory 
restriction upon his hours of labor may seem to be 
self-stultification. But viewed as an effort to es- 
tablish a legal claim to a settled modicum of dai^y 
leisure, it becomes at least intelligible. There may 
well have been a time when a usury law seemed to 
inflict hardship upon a borrower eager to pay any 
price for an urgently needed loan. Yet it was the 
debtor class who desired and ultimately obtained the 
enactment of usury laws. They w'ished to be rid of 
their freedom to contract for lifelong indebtedness, 
as the wage-earner to-day wishes to be rid of his 
present freedom to bargain away what he regards 
as an undue share of his twenty-four hours, and ex- 
perience has demonstrated the correctness of the 
instinct which guided the effort of the debtors. 

Every year the body of workingmen voters 
pledged to secure from the various governments 
legislation prescribing the so-called "eight hour 
clause" in all contracts, grows larger and more in- 
sistent ; and every year the industrial territory in- 
volved in such contracts enlarges its boundaries and 
becomes more important. The recent irrigation 



SOME ETHICAL GAINS 

undertakings of the United States in the arid 
regions sufficiently illustrate the rapidly increasing 
scope of these contracts. 

Although Congress is far behind the governments 
of England and Canada in guaranteeing to its indi- 
rect employees, working for it through contractors, 
the same leisure which it has long granted to its 
direct employees, the states and cities are going 
rapidly forward and the Supreme Court of the 
United States, in October, 1903, in the case of 
Atkins z's. the People, sustained the right of a state 
to provide by statute for the working day of eight 
hours for employees of the state itself, and of coun- 
ties and municipalities within its borders, whether 
the work be done directly, or indirectly through con- 
tractors. 

When a majority of the states, acting under this 
decision, have adopted statutes providing for the 
working day of eight hours for employees working 
for the public indirectly through contractors, it is 
reasonable to suppose that Congress will enact the 
bill which for many years has been presented to it 
at every session, providing for similar protection 
for workingmen in the employ of contractors work- 
ing for the federal government. 

The Right to Leisure of Wage-Earning Women 
and Children. — While striving to establish for 
themselves the right to daily leisure by trade agree- 
ments and by statutes, the wage-earning voters liave 
never relaxed their efforts to establish the same 
right for women and children uiJJie_employ of pri- 
vate individuals and corporations. And in this 
132 



JUDICIAL I N T E R P R E T A r 1 O N 

effort they have found it easier to use legislative 
methods, because the courts have been, on the whole, 
more inclined to permit the exercise of the police 
power of the legislatures than in the case of adult 
men. 

Statutes restricting the hours of labor of women 
and children, while enacted in the interest of health 
and morality, have often been urged by persons ani- 
mated by two other motives as well. In many cases, 
men who saw their own occupations threatened by 
unwelcome competitors, demanded restrictions upon 
the hours of work of those competitors for the pur- 
pose of rendering w'omen less desirable as em- 
ployees. In other cases, men who wished reduced 
hours of work for themselves, which the courts de- 
nied them, obtained the desired statutory reduction 
by the indirect method of restrictions upon the 
hours of labor of the women and children whose 
work interlocked with their own. But whatever 
the motive of the enactment, the real gain has al- 
ways been leisure for all concerned ; and the advan- 
tages to employers derivable from the work of 
women and children have regularly outweighed any 
inconvenience arising from the shortened working 
week. 

B^efore 1889 the effort for the enactment of stat- 
utes regulating the hours of labor of women-.was 
confined to the trade unionSj who had struggles, of _ 
tlieif ow"n,'To~pfotect their o \yn interests, ami who 
can scarcely be blamed if they_f ought the battles 

for leisure for womcn_aiid children first and most 

effectively in fields of industry where they them- 
133 



SOME ETHICAL GAINS 

selves reaped rewards from their occasional suc- 
cesses, /. c, in occupations in which the work of 
women and children interlocked with their own. 

The sum total of progress made is deplorably 
slight. While the hours of labor of children under 
the age of sixteen years are restricted to eight in 
one day and forty-eight in one week in Utah, Colo- 
rado, Montana, Illinois and Vermont ; to nine in 
one day and fifty-four in one week in New York 
and Delaware and to ten in one day and fifty-five in 
one week in New Jersey ; 3'et for girls between the 
ages of sixteen and twenty-four years whose num- 
bers are increasing more rapidly than any other 
part of the working class, there are neither eflfective 
trade agreements nor laws prescribing anything 
more advanced than the working-day of ten hours 
and the w^orking-week of fifty-eight or sixty hours. 
Moreover, the existing inadequate statutes tend to 
laxity of enforcement and to exceptions so im- 
portant as to nullify the intent of the law in many 
cases. 

Obviously most progress in establishing the right 
to leisure has been made by men who are both 
skilled workers and also voters (printers in the 
government offices, etc.), and the least progress by 
children ten years old in Georgia and Mississippi. 
We commonly assume that, under the processes of 
evolution, industrial conditions improve from 
decade to decade. But in the matter of a whole- 
some distribution of free time, it is clear that gains 
have been made, hitherto, according to the power of 
the working people to assert their right. How else 

134 



I 



JUDICIAL INTERPRETATION 

can we account for the fact that children of ten 
years of age still work eleven hours a day in the 
cotton mills of Georgia ? The reason for their over- 
work is obviously to be sought in their powerless- 
ness to organize for their own defense, in the weak- 
ness of the organizations of men in industries in 
which women and children compete, as they do in 
the textile trades ; and in that apathy of public 
opinion which permits stockholders living in states 
in which relatively humane conditions have long 
prevailed, to derive incomes from corporations in 
states in which children and young girls are still 
exploited without restriction. 

Leisure never comes to young girls and children 
employed in manufacture and commerce through 
efforts of their own, or upon the initiative of their 
employers, because under the demand for dividends 
and the pressure of competition, the better employer 
is constrained by the meaner or the industrially 
weaker. On a large scale this is illustrated by the 
alleged present inability of manufacturers in Alas- 
sachusetts to shorten the working day and the 
working week in the textile trades, by reason of the 
pressure of their Southern competitors. For the 
younger w-orkers, therefore, leisure is gained, with 
no help from themselves, either because their work 
interlocks with that of men working under trade 
agreements ; or because statutes have been enacted 
for their benefit and the organization of men in their 
trade is powerful and intelligent enough to obtain 
effective enforcement of the laws ; or because there 
is intervention on behalf of the young employees by 
135 



SOME ETHICAL GAINS 

philanthropic bodies, such as the Consumers' 
League and the various child-labor committees and 
working-women's societies, through which the pub- 
lic at large intervene in the interest of health and 
morality. 

Taken altogether, the progress made on behalf of 
women and children, so slight, and so diverse in the 
different states, indicates how discouragingly far the 
right to leisure still is from any universal recogni- 
tion, and how dependent upon militant action of the 
workers themselves. 

It was not until after 1870 that Massachusetts, 
the Commonwealth which for thirty years stood in 
advance of all the states of the Republic in safe- 
guarding the health, welfare and rights of wage- 
earning women and children, enacted a statute pro- 
hibiting the employment of women and children in 
manufacture longer than ten hours in one day and 
sixty hours in one week, and made provision for in- 
spectors to enforce the law. In 1876 this statute 
was pronounced constitutional by the Supreme 
Court of Massachusetts in the case of the People vs. 
the Hamilton Manufacturing Company (120 Mass., 
385, 1876), in which it was held that the legislature 
had full power to restrict by statute the hours of 
labor of adult women employed in factories, under 
the terms of Chapter II, Section iv, of the constitu- 
tion of Massachusetts : "Full power and authority 
are hereby given to the said General Court, from 
time to time, to make, ordain and establish all man- 
ner of wholesome and reasonable laws, ordinances, 
statutes, directions, and instructions, either with or 
136 



JUDICIAL INTERPRETATION 

witliout penalties; so as the same be not repugnant 
to this constitution, as they shall judge to be for the 
good and welfare of the Commonwealth, and for 
the governing thereof." 

Many states have since followed the example of 
Massachusetts, but none has gone beyond it. In- 
deed, so far as is known to the writer, no other 
state has followed the important improvements in- 
corporated in the Massachusetts statute since its 
establishment in 1876 by the decision of the Su- 
preme Court. By subsequent amendments the hours 
of labor of women engaged in manufacture were 
reduced to fifty-eight in one week, and the same re- 
striction extended, in 1900, to the hours of labor of 
women engaged in commerce, although an exemp- 
tion covering the month of December temporarily 
weakened this extension compared with the protec- 
tion afforded to v/omen engaged in manufacture. 
In 1904, however, the exemption covering work in 
December w^as repealed, and women now stand on 
the same footing in regard to daily leisure, whether 
they are employed in manufacture or in commerce. 

New York waited until 1886 before restricting by 
statute the hours of labor of women and children; 
and even then provided only for women under the 
age of twenty-one years, waiting until 1899, after 
the promulgation of the decision of the United 
States Supreme Court in the case of Holden vs. 
Hardy, February, 1898, before extending the re- 
striction to women of all ages engaged in manu- 
facture. 

The imperfect and unequal recognition of the 
137 



SOME ETHICAL GAINS 

right to leisure is well illustrated by the present 
statutory provision of New York. There children 
under the age of sixteen years cannot legally be em- 
ployed longer than nine hours in one day and fifty- 
four hours in one week. For children engaged in 
manufacture, the working day must end at nine 
o'clock at night, but children engaged in commerce 
may work until ten. Women of all ages are nom- 
inally prohibited from working longer in manufac- 
ture than ten hours in one day and sixty hours in 
one week, but this prohibition is rendered virtually 
nugatory by the words "except for the purpose of 
making a shorter working day on the last day of the 
week," in consequence of which the factory inspect- 
ors find the utmost difficulty in proving any given 
violation of the whole provision. Women em- 
ployed in commerce enjoy, however, not even this 
defective statutory provision after reaching the age 
of twenty-one years. And for girls between the 
ages of sixteen and twenty-one years it is expressly 
permitted that they may work, without limitation of 
the length of the working day, from December 15 
to January i, i. e., during the fortnight in all the 
year in which they are most in need of a definite 
prohibition of all work after six o'clock at night. 

Here are four divisions of the protected workers, 
all having different provisions as to their degree of 
statutory leisure : Children under sixteen years of 
age in manufacture, and children of the same age in 
commerce; women under the age of twenty-one 
years in commerce, and women of all ages in manu- 
facture. And each of the two latter classes is sub- 
138 



JUDICIAL INTERPRETATION 

jcct to exceptions in the statute which very seriously 
diminish its face vahie. 

The Illinois Decision of 1895; (Ritchie vs. the 
People.) — In iSyj the legislature of Illinois en- 
acted a statute restricting the work of women and 
girls engaged in manufacture to eight hours in one 
day and forty-eight hours in one week, and pro- 
vided for the enforcement of the law by inspectors 
whose duty it was to prosecute all violations of the 
statute. But in May, 1895, this law was pronounced 
unconstitutional by the Supreme Court of Illinois, 
and since that date there has been no restriction 
whatever upon the hours of labor of women in that 
state. Because it is still in force in Blinois, depriv- 
ing thousands of women and young girls of all stat- 
utory protection in the enjoyment of their right to 
daily leisure, this decision is still of importance, and 
is, therefore, printed in the appendix. 

iVt the time of the rendering of the Illinois deci- 
sion, the writer, as the responsible head of the state 
department of factory inspection, charged with the 
duty of enforcing the eight hours law, incorporated 
in the next following annual report of the depart- 
ment some comments upon the decision, w^hich have 
remained buried in the obscurity of an official re- 
port. Time has, however, verified in so hope-in- 
spiring a manner some of the statements there made 
that it seems worth while to reproduce them after 
the lapse of ten years : 

"In annulling this section, the ground taken by 
the court, namely that regulation of the hours of 
labor is in excess of the powers of the legislature is 
139 



SOME ETHICAL GAINS 

of curious interest in contrast with the established 
policy of those states and nations in which this 
power to regulate is no longer in question, where the 
principle is accepted and acted upon that the care of 
the health of the factory employee is a legitimate 
subject of legislation. 

"In France, Germany and every other continental 
country, including Russia, and in the more progres- 
sive states of this country, legislative regulation of 
the hours of labor has been found an effective meas- 
ure for the protection of the health of women and 
children employed in factories and workshops. In 
England, the principle of the regulation of the hours 
of work for women and children has been estab- 
lished for more than two generations and the re- 
generation of the working-class in that country, 
from the degradation in which it was sunk in 1844, 
is generally attributed to the factory acts, and es- 
pecially to this important feature of them. 

"In contrast with the beneficent policy which has 
been followed during the past half-century in that 
greatest manufacturing country of the world, the 
Supreme Court of Illinois, in the year 1895, has 
rendered its decision upon grounds which were ad- 
vanced and rejected in the English parliament in the 
fifties. 

"The new feature introduced into the body of 
American legal precedent by this decision is the as- 
sumption that it is not exclusively a matter of the 
constitution of Illinois. The state constitution 
could be altered, so that thereafter the hours of 
labor could be regulated by legislative enactment, as 
140 



JUDICIAL IN'IERPRETATION 

in the older industrial communities. The court, 
however, makes the fourtecnlh auKiidmcnt to the 
Constitution of the United States the basis of its 
decision. If this position were correct, all effort 
for legislative restriction of the working day would 
be wasted, since there is no prospect of change in 
the Constitution of the United States. 

"Happily the weight of precedent is not on the 
side of the Illinois court ; the precedents are in the 
other direction. In ^Massachusetts, for twenty 
years past, the principle has been established by the 
Supreme Court that the hours of labor of women 
and children may be regulated by statute. The 
Massachusetts precedent has had such weight that 
no case has been carried to the Court of Appeals in 
New York. The constitutionality of its ten hours 
law, though suits have been brought under it, has 
never been disputed. 

"It remained for the Supreme Court of Illinois to 
discover that the amendment to the Constitution of 
the United States passed for the purpose of guaran- 
teeing the negro from oppression, has become an in- 
superable obstacle to the protection of w'omen and 
children. Nor is it reasonable to suppose that this 
unique interpretation of the fourteenth amendment 
will be permanently maintained, even in Illinois. 

"To the working people of the state, the action of 
the Supreme Court is a calamity, for it must never 
be forgotten, in discussing the legislative restriction 
of the hours of labor, that this is not a question be- 
tween the day of eight hours and the day of ten. In 
practise the question is between an unlimited work- 
Mi 



SOME ETHICAL GAINS 

ing day and a day restricted by statute to a reason- 
able number of hours. The court in this decision 
holds that any restriction of hours of labor of adults 
is beyond the power of the legislature. 

"The immediate result of the decision has been 
the reestablishment of the unlimited working day 
for thousands of women and children in the fac- 
tories and workshops of Illinois. 

"When it is remembered that the annual increase 
in the number of women and girls employed in fac- 
tories and workshops in this state is counted by 
thousands; that there are i,i8i little girls in the 
sweat-shops of Chicago; that inspectors of this 
department have found at work during the present 
year more than 30,000 women, of whom more than 
7,000 were in sweat-shops, it is clear that the ques- 
tion of legislative restriction of the hours of their 
labor is not finally settled when the state Supreme 
Court has passed upon it in disregard of the body 
of American judicial precedents, in opposition to the 
experience of all civilized countries, and to the in- 
jury of the large and growing number of women 
and children engaged in manufacture within this 
state. 

"The judicial mind has not kept pace with the 
strides of industrial development, and this decision 
shows that Illinois is, in law in 1895, what it was in 
fact when the state constitution was adopted in 1870 
— an agricultural state. What then can be done for 
the weakest and most defenseless bread-winners in 
the state? 

"The outlook is far from hopeless. Even under 
142 



JUDICIAL I N r E R P R E T A 11 O N 

the decision as it stands, farther legislative protec- 
tion for minors is not impossible. As to adults, the 
court has reversed decisions upon points of far less 
urgency than this. 

"It may be that the court is as advanced as that 
portion of the community which is not yet thor- 
oughly aware that Illinois is the third great manu- 
facturing state of the Union. When, however, the 
observations made during a few more years shall 
have convinced the medical profession, the phi- 
lanthropists, and the educators, as experience has 
already convinced the factory employees themselves, 
that it is a matter of life and death to the young 
people who form so large a proportion of their 
numbers, to have a v^^orking day of reasonable 
length guaranteed by law, it will be found possible 
to rescue the fourteenth amendment to the Consti- 
tution of the United States from the perverted in- 
terpretation upon which this decision rests. We 
may hope that Ritchie vs. the People will then be 
added to the reversed decisions." 

Despite the suggestion of the court that the hours 
of labor of minors could be restricted by statute, the 
paralyzing effect of the whole decision was such 
that for eight years it was impossible to obtain even 
a restriction upon the work of little boys at night in 
glass-works. It was not until 1903, ten years after 
the passage of the first eight hours law, that a child- 
labor law was enacted prohibiting the employment 
of children under the age of sixteen years after 
seven o'clock at night, or longer than eight hours in 
one day. Thus from 1895 to 1903 girls fourteen 
143 



SOME ETHICAL GAINS 

years of age could be legally employed throughout 
the night, or for any number of consecutive hours 
that might suit the convenience of their employers. 
And at the present time, both boys and girls over the 
age of sixteen years have no statutory right to any 
daily leisure in IlHnois, but may be called upon to 
work twenty-four hours at a stretch if an employer 
should care to make such a demand. Instances 
have come to the knowledge of the writer in which 
corporations having branches in New York and 
Illinois obeyed the law of New York and employed 
no women or girls after nine o'clock at night in 
that state, while, under the Illinois decision, they re- 
quired young girls to work all night in the Illinois 
factory. Indeed, young girls are regularly and 
constantly required to work at night in Chicago. 

During the years since that belated and anti- 
social decision, Illinois has been the scene of a large 
number of strikes, in which the length of the work- 
ing-day was either the only point or the principal 
point at issue. Had the working day of women and 
girls remained legally determined throughout the 
period, according to the enlightened intention of the 
legislature of 1893, it would have been eliminated as 
a cause of discord in all those cases in which only 
women and girls were involved and in all those 
other cases in which the hours of labor of men are 
determined by the length of the working day of the 
women and girls whose work interlocks with their 
own. The number and seriousness of the strikes 
since 1895, in Illinois, would in all probability have 
been thus materially diminished, together with the 
144 



JUDICIAL I N T E R P R E 'P A T I O N 

lawlessness incident to them, since an ever present 
cause of discord would have been eliminated by the 
statutory recognition of a right. 

Since 1876 the hours of labor of women engaged 
in manufacture have been determined by statute in 
Massachusetts, and strikes turning upon this point 
have been impossible. In Illinois, since 1895, the 
hours of labor of women and girls have been un- 
limited, by reason of the decision of the Supreme 
Court in the case of Ritchie vs. the People. Since 
the Supreme Court of Illinois interfered with, and 
rendered unavailing, the effort of the legislature of 
that state to eliminate a cause of discord by estab- 
lishing a statutory right, it seems reasonable to at- 
tribute to the court the ultimate responsibility for 
the lawlessness of men and women who have striven 
to establish by extra-legal or illegal methods that 
right to leisure which the courts of Massachusetts 
and of the United States affirm, but the Supreme 
Court of Illinois denies. 

The justice who wrote the Illinois decision is 
dead. A judicial election has been held and several 
of his reactionary colleagues have been replaced by 
men of more modern mind. But more important 
than these changes of personnel is the prospective 
effect of the decision of the Supreme Court of the 
United States in the case of Holden vs. Hardy, as 
will appear from the discussion of that case. 

The Right to Leisure of Workingmen. — The 

most important judicial decision affecting the right 

to leisure is that of the Supreme Court of the 

United States in the case of Holden vs. Hardy, pro- 

10 145 



SOME ETHICAL GAINS 

mulgated February 28, 1898, and commonly known 
as the Utah Eight Hours Case. This decision con- 
firms the hope that the right to leisure may be es- 
tablished and extended by constitutional methods, 
legislatures and courts working harmoniously to pro- 
mote the health and welfare of wage-earning people. 
By its reasonable and affirmative construction and 
definition of the intent and scope of the fourteenth 
amendment to the Constitution of the United States, 
this decision opened the way for a peaceful, though 
slow and laborious evolution of the beneficent pow- 
ers of the individual states, and for reasonable and 
wholesome hours of work and of daily leisure. The 
fact that it immediately secured to the employees in 
certain industries in Utah the benefits of a statutory 
confirmation of their right to daily leisure, is not the 
vital point in this decision. Far more important to 
the nation and the future is the fact that it tended 
to rehabiliate the states in the performance of some 
of their most weighty functions, and reaffirmed 
principles which, formerly accepted as self-evident, 
had in recent years been not only disputed but abro- 
gated by state supreme courts in a long series of 
decisions. 

In all great industrial countries it has long been 
recognized that manufacture and commerce require 
equitable conditions ; that legislative requirements 
of whatever kind, if imposed upon one, must be im- 
posed upon all alike ; that discrimination must be 
avoided, not alone because it is unjust, but because 
it is fatal. Hence legislation regulating the condi- 
tions of employment is usually embodied in meas- 
146 



JUDICIAL INTERPRETATION 

ures of national scope, the execution alone bein:^ 
left to the local authorities, while broad fuiulanienlal 
provisions are uniform for one industry throughout 
an empire, a kingdom or republic. In America 
alone, the constitution leaves, in effect, to the states 
the regulation of the relation of employees to their 
work, and of the conditions of that work, — except 
as employees who come under the interstate com- 
merce act receive the benefit of certain safeguards 
prescribed by that act. 

When, therefore, state Supreme Courts take the 
position held by the Illinois court (Ritchie vs. the 
People), annulling the Illinois eight hours law, viz.: 
that, in consequence of the fourteenth amendment 
to the Constitution of the United States, the indi- 
vidual states are prohibited from interfering with 
the hours of labor, commerce and manufacture in 
the states afifected by such decisions are, pro tanto, 
worse off than in other states and countries ; for 
they are left without either state or national pro- 
vision for that uniformity of relations which is one 
of their most vital interests. This construction of 
the fourteenth amendment, adopted and disastrously 
applied, in recent years, by the Supreme Courts of 
Illinois and several other states, has exercised a 
doubly injurious influence. It has minimized the 
power and efficiency of the states, and it has de- 
prived employees of a protection which they could 
derive from no other source. 

Incalculable importance attaches to this decision 
of the Supreme Court of the United States, because 
it reproves and, in the end, must effectively check 
147 



SOME ETHICAL GAINS 

that blighting tendency of the state Supreme Courts. 

But for the unwholesome decisions of state courts 
arbitrarily placing limitations upon the powers of 
the states and reducing to lawlessness, for want of 
any legislative body recognized by the state courts 
as competent to deal with them, the relations of 
employees to their work, much of the decision under 
discussion might seem to be mere truism. Under 
existing conditions, however, it offers the curious 
and instructive spectacle of the Supreme Court of 
the United States assigning to the states duties and 
powers which the Supreme Courts of those states 
had previously declared not to be theirs. 

In 1895 the Supreme Court of Illinois decided 
that the state cannot restrict by legislation the hours 
of labor of any adult. About the same time the 
legislature of Colorado inquired of the Supreme 
Court of Colorado whether a proposed statute lim- 
iting to eight hours the working day of laborers and 
mechanics would be constitutional; or whether it 
could be rendered constitutional by an amendment 
providing that it should apply only to mines and 
factories. The Supreme Court of Colorado replied 
that both proposals "would be unconstitutional, be- 
cause they violate the right of both parties to make 
their own contracts — a right guaranteed by the 
fourteenth amendment to the Constitution of the 
United States." In 1894 the Supreme Court of 
Nebraska had decided that "an act of the legislature 
of that state providing that eight hours should con- 
stitute a legal day's work for all classes of me- 
chanics, servants, and laborers throughout the state, 
148 



JUDICIAL I N T E R r R irr A r I O N 

excepting- those eiij^aged in farming and domestic 
labor, and making violation of its provisions a mis- 
demeanor, was unconstitutional, and, therefore, void 
both as special legislation and as attempting to pre- 
vent persons legally competent to enter into con- 
tracts, from making their own contracts." 

Undeterred by these three recent and discouraging 
decisions of western courts, the people of Utah fell 
back upon the precedent of Massachusetts (People 
vs. Hamilton Manufacturing Company, 1876), 
affirming that the legislature of Massachusetts had 
power to restrict by statute the hours of labor of 
adult women employed in factories. The Illinois 
court, in its decision annulling the Illinois eight 
hours law, had taken occasion to refer to the Mas- 
sachusetts decision, stating that, "it is not in line 
w^ith the current of authority," and explaining that 
it could be arrived at only by reason of the "large 
discretion vested in the legislative branch of the 
government" by the constitution of the state. 

From the days of the sweeping provision of the 
constitution of Massachusetts which took effect Oc- 
tober, 1780, and has remained in force to the present 
day, the tendency has been to reduce the powers of 
the legislatures, both by restrictions inserted in the 
state constitutions and by the interpretation placed 
upon those constitutions by the state courts. 
Strongest of all had been tlie use of the fourteenth 
amendment by the state courts. This tendency to re- 
duce legislative power in the states to zero, degrading 
the state government to a mere mechanism for lay- 
ing and collecting taxes for the maintenance of the 
149 



SOME ETHICAL GAINS 

judiciary, the militia and the state charities, reached 
its cuhiiination in the lUinois decision referred to. 
How far the pendulum has swung back towards the 
position of Massachusetts in 1780 is shown by the 
action of the people of Utah, by the decision of their 
Supreme Court, and by the decision of the Supreme 
Court of the United States sustaining that state 
court. 

The people of Utah, instructed by the Supreme 
Court of Illinois in 1895, showed by their action in 
1896 that they had learned the lesson. For, not 
content with such sweeping generalities as those of 
the Massachusetts constitution, they incorporated 
into their new constitution of 1896 an article dealing 
explicitly with the rights of working people, as fol- 
lows: 

"Section i. The rights of labor shall have just 
protection through laws calculated to promote the 
industrial welfare of the state. 

"Sec. 2. The legislature shall provide by law 
for a board of labor, conciliation and arbitration, 
which shall fairly represent the interests of both 
capital and labor. The board shall perform duties 
and receive compensation as prescribed by law. 

"Sec. 3. The legislature shall prohibit: 

"(i) The employment of women, or of children 
under the age of fourteen years, in underground 
mines. 

"(2) The contracting of convict labor. 

"(3) The labor of convicts outside prison 
grounds, except on public works under the direct 
control of the state. 

ISO 



1 



JUDICIAL INTERPRETATION 

"(4) The political ami commercial control of 
employees. 

"Sec. 4. The exchange of blacklists by railroad 
companies, or other corporations, associations, or 
persons is prohibited. 

"Sec. 5. The right of action to recover damages 
for injuries resulting in death shall never be abro- 
gated, and the amount recoverable shall not be sub- 
ject to any statutory limitation. 

"Sec. 6. Eight hours shall constitute a day's 
work on all works or undertakings carried on or 
aided by the state, county or municipal govern- 
ments ; and the legislature shall pass laws to pro- 
vide for the health and safety of employees in fac- 
tories, smelters, and mines. 

"Sec. 7. The legislature, by appropriate legisla- 
tion, shall provide for the enforcement of the pro- 
visions of this article," 

In accordance with the provisions of section 7 of 
this article, the Utah legislature proceeded to enact 
a statute, of which the essential features are as fol- 
lows : 

"Section i. The period of employment of work- 
ingmen in all underground mines or workings shall 
be eight hours per day, except in cases of emergency 
where life or property is in imminent danger. 

"Sec. 2. The period of employment of working- 
men in smelters and all other institutions for the 
reduction or refining of ores or metals shall be eight 
hours per day, except in cases of emergency where 
life or property is in imminent danger." 

On June 26, 1896, one liolden was arrested under 

151 



SOME ETHICAL GAINS 

a warrant charging him with employing a man to 
work in a mine ten hours in one day. The court, 
having heard the evidence in the case, imposed a 
fine of $50 and costs, and ordered the defendant to 
be imprisoned in the county jail for a term of fifty- 
seven days, or until the fine and costs were paid. 
The case was immediately appealed, under habeas 
corpus proceedings, to the Supreme Court of Utah, 
and the law was sustained. The case was then car- 
ried to the Supreme Court of the United States, 
which handed down its decision on February 28, 
1898, Justices Peckham and Brewer dissenting. 
The statute was again sustained. The position of 
the Supreme Court of the United States was defined 
as to the constitutionality of statutory restrictions 
upon the hours of labor of adults; and as to the 
powers and duties of the states with regard to the 
health and welfare of employees. The decisions of 
the courts of Illinois, Nebraska and Colorado were 
quoted with disapproval. But the great service 
rendered by this decision was its destruction of the 
bogy-man with which state supreme courts had for 
years been terrifying themselves, and each other, 
and timorous legislatures, under the name of the 
fourteenth amendment to the Constitution of the 
United States. Once for all, it is convincingly laid 
down by this decision that statutes restricting the 
hours of labor of employees in occupations injurious 
to the health will not be held unconstitutional by the 
Supreme Court of the United States on the ground 
that they are in conflict with the fourteenth amend- 
ment to the Constitution of the United States. 
152 



JUDICIAL INTERPRETATION 

The decision is so coherent, so closely knit, that 
injnstice is dune by quoting isolated parts of it by 
way of illustrating the position taken by the court. 
Yet certain portions of the decision are of such vital 
import that they are here reproduced. Says the 
court: "The Constitution of the United States, 
which is necessarily and to a large extent inflexible, 
and exceedingly difficult of amendment, should not 
be so construed as to deprive the states of the power 
to so amend their laws as to make them conform to 
the wishes of the citizens, as they may deem best for 
the public welfare, without bringing them into con- 
llict with the supreme law of the land." And again 
the court says : "This court has not failed to rec- 
ognize the fact that the law is, to a certain extent, a 
progressive science ; that, in some of the states, 
methods of procedure which, at the time the consti- 
tution was adopted, were deemed essential to the 
protection and safety of the people, or to the liberty 
of the citizen, have been found to be no longer neces- 
sary ; that restrictions which had formerly been laid 
upon the conduct of individuals, or of classes of in- 
dividuals, had proved detrimental to their interest, 
while, upon the other hand, certain classes of per- 
sons (particularly those engaged in dangerous or un- 
healthful employments) have been found to be in 
need of additional protection." "While this court 
has held that the police power cannot be put forward 
as an excuse for oppressive and unjust legislation, it 
may be lawfully resorted to for the purpose of pre- 
serving the public health, safety, or morals, or the 
abatement of public nuisances, and a large discretion 
IS3 



SOME ETHICAL GAINS 

*is necessarily vested in the legislature, to determine, 
not only what the interests of the public require, but 
what measures are necessary for the protection of 
such interests.' " Finally, the court quotes with ap- 
proval the most advanced position taken by the 
Supreme Court of Utah, as follows : "Though 
reasonable doubts may exist as to the power of the 
legislature to pass a law, or as to whether the law is 
calculated or adapted to promote the health, safety, 
or comfort of the people, or to secure good order, 
or promote the general welfare, we must resolve 
them in favor of the right of that department of 
government." 

Having thus come to the rescue of the state legis- 
latures and their powers in general, the court deals 
with their duties in regard to the health of em- 
ployees. It sets up the general proposition that, "It 
is as much for the interest of the state that the 
public health should be preserved as that life should 
be made secure." "In [some] states laws have been 
enacted limiting the hours during which women and 
children shall be employed in factories ; and while 
their constitutionality, at least as applied to women, 
has been doubted in some of the states, they have 
been generally upheld. Thus, in the case of the 
Hamilton Manufacturing Company (120 Mass., 
283), it was held that a statute prohibiting the em- 
ployment of all persons under the age of eighteen, 
and of all women laboring in any manufacturing 
establishment more than sixty hours per week, vio- 
lates no contract of the Commonwealth implied in 
the granting of a charter to a manufacturing com- 

154 



JUDICIAL INTERPRETATION 

pany, nor any right reserved under the constitution 
to any inchvidual citizen, and may be maintained as 
a health or poHce regulation." 

It is refreshing to find the enlightened Massa- 
chusetts decision thus authoritatively brought back 
into the "current of authority" from which it was, 
as has been seen, thrust forth by the Illinois court 
in Ritchie vs. the People. The Supreme Court of 
the United States settles also the vital question : 
"Who shall decide which occupations are suffi- 
ciently injurious to justify the restriction of the 
hours of daily labor of persons employed in them?" 
On no points have state courts been more arrogant, 
the Illinois court taking perhaps the most extreme 
position of all in the following passage of its de- 
cision : 'Tt [the eight hours section of the state 
factory law] does not inhibit their [women's] em- 
ployment in factories or workshops. On the con- 
trary, it recognizes such places as proper for them 
to work in by permitting their labor therein during 
eight hours of each day. The question here is not 
whether a particular employment is a proper one for 
the use of female labor, but the question is whether, 
in an employment which is conceded to be lawful 
in itself, and suitable for woman to engage in, 
she shall be deprived of the right to determine for 
herself how many hours she can and may w'ork 
during each day. There is no reasonable ground — 
at least none which has been made manifest to us 
in the arguments of counsel — for fixltig upon eight 
hours in one day as the limit within which woman 
can work without injury to her physique, and be- 
155 



SOME ETHICAL GAINS 

■yond which, if she work, injury will necessarily 
follow." 

The court was naturally not in a position to in- 
vestigate the conditions of work in the factories and 
workshops of IlHnois. That is not its function. 
But the legislature of 1893, which enacted the stat- 
ute then under consideration by the court, had been 
in a position to investigate the conditions of manu- 
facture throughout the state; it had appointed a 
joint committee of the house and senate to investi- 
gate the factories and wrokshops in operation ; this 
committee had visited a great number of establish- 
ments, and had taken a large amount of testimony 
from employers, employees, physicians, visiting 
nurses, inspectors and other witnesses, and had de- 
cided that, in view of the intensity of work and the 
speed required in virtually all occupations, eight 
hours did constitute a limit of hours of labor beyond 
which women could not work without injury. All 
this no court can do; it has no apparatus for such 
investigations ; but this circumstance did not pre- 
vent the Illinois court from usurping the right 
which the later decision of the Supreme Court of 
the United States happily reassigns to the legisla- 
ture. 

Touching the powers of the legislatures in the 
matter of health and the hours of labor, the Supreme 
Court of the United States says : "These employ- 
ments, when too long pursued, the legislature has 
judged to be detrimental to the health of the em- 
ployees ; and, so long as there are reasonable 
grounds for believing that this is so, its decision 
iS6 



JUDICIAL INTERPRETATION 

upon this subject cannot be reviewed by the federal 
courts." 

And elsewhere the Supreme Court of the United 
States quotes with approval the words of the Utah 
court: "It may be said that labor in such condi- 
tions must be performed. Granting that, the period 
of labor each day should be of reasonable lenj:;;th. 
Twelve hours per day would be less injurious than 
fourteen, ten than twelve, and eight than ten. The 
legislature has named eight. Such a period was 
deemed reasonable." 

The Illinois court had said: "The police power 
of the state can only be permitted to limit or abridge 
such a fundamental right as the right to make con- 
tracts when the exercise of such power is necessary 
to promote the health, comfort, welfare, or safety 
of society or the public ; and // is questionable 
whether it can be exercised to prevent injury to the 
individual engaged in a particular calling." 

In beneficent contrast with this sinister dictum, is 
the following from the United States Supreme 
Court : "The legislature has also recognized the 
fact, which the experience of legislators in many 
states has corroborated, that the proprietors of these 
establishments and their operatives do not stand 
upon an equality, and that their interests are, to a 
certain extent, conflicting. The former naturally 
desire to obtain as much labor as possible from their 
employees, while the latter are often induced by the 
fear of discharge to conform to regulations which 
their judgment, fairly exercised, would pronounce 
to be detrimental to their health or strength. In 
157 



SOME ETHICAL GAINS 

Other words, the proprietors lay down the rules, and 
the laborers are practically constrained to obey 
them. In such cases self-interest is often an unsafe 
guide, and the legislature may properly interpose 
its authority." "The fact that both parties are of 
full age and competent to contract, does not neces- 
sarily deprive the state of the power to interfere, 
where the parties do not stand upon an equality, or 
where the public health demands that one party to 
the contract should be protected against himself. 
The state still retains an interest in his welfare, how- 
ever reckless he may be. The whole is no greater 
than the sum of all the parts, and when the indi- 
vidual health, safety and welfare are sacrificed or 
neglected, the state must suffer." 

This decision was not, of course, retroactive. It 
did not revive the Illinois statute restricting to eight 
hours in one day the work of female employees en- 
gaged in manufacture, enacted in 1893 and pro- 
nounced unconstitutional by the state Supreme 
Court in 1895. It did, however, by citing with dis- 
approval virtually every proposition laid down by 
the Illinois court in that decision, give satisfactory 
assurance that the next eight hours law enacted in 
Illinois, if restricted in its terms to occupations 
dangerous to the health of the employees, must 
stand as good law, and cannot be pronounced in 
conflict with the Constitution of the United States. 

The decision of the Supreme Court of the United 

States in the case of Holden vs. Hardy renders it 

unnecessary that, in future, statutes restricting the 

hours of labor should be confined in their applica- 

158 



JUDICIAL INTERPRETATION 

tion to women ami iiiinors. if they have to do with 
occupations injurious to the human organism. The 
miners of lUinois and Pennsylvania might well 
strive for statutory confirmation of the eight hours 
day which they now enjoy only under terminable 
agreements based on arbitration. And w'omen in 
the cotton mills have only to show that the ever in- 
creasing numbers of spindles and shuttles, and the 
ever increasing rate of speed required of them by 
the improvement of machinery, are wearing out 
their working energy, in order to be entitled to leg- 
islative restriction upon their working hours under 
the reasoning of this admirable decision. To 
women driving foot-power machines under the 
sweating-system, and to the employees in countless 
other occupations, the same reasoning applies. For 
the purpose of ascertaining which occupations are 
injurious, there might w-ell be comprehensive inves- 
tigations by boards of health and bureaus of labor. 

The fact that the hours of labor of adult men can 
be restricted by statute only in occupations proven 
injurious to the health, is emphasized anew by the 
decision of the Supreme Court of the United States 
in the case of Lochner vs. New York,^ where the 
court said : "The law must be upheld, if at all, as 
a law pertaining to the health of the individual 
baker. It does not aflfect any other portion of the 
public than those who are engaged in that occupa- 
tion. Clean and wholesome bread does not depend 
upon whether the baker works but ten hours per 
day or only sixty hours a week. The limitation of 

^Supreme Court Reporter, Vol. 25, p. 539 et seq. 
159 



SOME ETHICAL GAINS 

the hours of labor does not come within the poHce 
powers on that ground. . . . The mere asser- 
tion that the subject relates, though but in a remote 
degree, to the public health, does not necessarily 
render the enactment valid. . . . We think 
that there can be no fair doubt that the trade of a 
baker, in and of itself, is not an unhealthy one to 
that degree which would authorize the legislature 
to interfere with the right to labor, and with the 
right of free contract on the part of the individual, 
either as employer or employee. In looking through 
statistics regarding all trades and occupations, it 
may be true that the trade of a baker does not ap- 
pear to be as healthy as some other trades, but it is 
also vastly more healthy than still others. To the 
common understanding, the trade of a baker has 
never been regarded as an unhealthy one." 

In New York, an extension of the statutory right 
to leisure followed directly upon the decision of the 
United States Supreme Court in the case of Holden 
vs. Hardy. As has been shown elsewhere, the 
hours of work of women over the age of twenty- 
one years, engaged in commerce and manufacture, 
were unrestricted in that state until 1899, when the 
legislature, encouraged by this decision, restricted 
to ten hours in one day and sixty hours in one 
week, the labor of women engaged in manufacture. 

The Supreme Courts of Nebraska^ and Washing- 
ton^ have sustained statutes modeled on those of 

^Wenham vs. the State, 91 Northwestern Reporter, 421. 
Statute enacted Mar. 31, 1899. 

^ State vs. Buchanan, 70 Pacific Reporter, 52. Statute en- 
acted 1 90 1. 

160 



JUDICIAL INTERTRETATION 

Massachusetts for the protection of women in their 
right to leisure, the court of Washington citing the 
decision of Massachusetts and the Supreme Court 
of the United States in support of its opinion, and 
observing that the lUinois decision is the only one 
by which an act of this kind has been declared un- 
constitutional by a court of last resort. 

In Missouri/ the provisions of the Utah law re- 
stricting to eight hours the work of miners, adopted 
by the legislature and sustained by the Supreme 
Court of Missouri, are now in force. 

It has been related that the legislature of Colo- 
rado inquired of the Supreme Court of that state 
whether the provisions of the Utah law would be 
constitutional if enacted in Colorado, and w^as as- 
sured that they would not be constitutional. In 
spite of this assurance, such provisions were enacted 
by the legislature in 1899. I" J^^^Y of the same 
year a case arising under the statute was carried 
to the state Supreme Court and the law was pro- 
nounced unconstitutional.' The people of Colorado 
then followed the example of the people of Utah 
and amended the state constitution by the adoption 
of a section authorizing the legislature to enact a 
provision similar to that which had been pronounced 
constitutional by the Supreme Court in the case of 
Holden vs. Hardy. This the legislature of Colo- 
rado has hitherto failed to do. 

The history of Colorado repeats in a spectacular 

^ State vs. Cantwell et al., 78 Southwestern Reporter, 569. 
Statute enacted March 23, 1901. 

-In re Morgan, 58 Pacific Reporter, 1071, July, 1899. 
II 161 



SOME ETHICAL GAINS 

manner the experience of Illinois. Statutory rec- 
ognition of the right to leisure being denied, work- 
ing people have striven to attain by strikes what 
they had failed to obtain by statute. The lawless- 
ness which has disgraced Colorado, like the lawless- 
ness which has long disgraced Illinois, is traceable 
ultimately to the denial of law by the authorities 
which alone can constitute and establish it. In 
Illinois the Supreme Court denied a right; in Col- 
orado, the legislature. In both states the harm done 
is irreparable. Lives have been sacrificed ; violence 
has taken the place of civic order; the public con- 
science has been outraged. But the Supreme Court 
of the United States has indicated the right path; 
the way is open ; the remedy is at hand. Other offi- 
cials can be elected; the will of the people can be 
enforced. 

The effort of the wage-earners is to establish the 
right to leisure; to transmute the unemployed time 
of the dull season, with its attendant demoralization 
and suffering, into regular daily leisure, with salu- 
tary opportunity for rest, recreation, education, 
family life and self-help by means of savings so- 
cieties and all those agencies administered by work- 
ing people themselves which depend for their suc- 
cess upon the regular attention of persons free from 
over-fatigue and irregular pressure. 

It is conceded that the right to leisure may be es- 
tablished by statute for children and minors in all 
states and in all industries ; for women in some 
states in all industries ; for both men and women in 
industries dangerous to the health ; and, finally, for 
162 



JUDICIAL INTERPRETATION 

employees of tlie federal, state and municipal g-ov- 
ernments. It is, however, one thing to have these 
points established in principle by the courts, and 
an entirely dilTeront thing to achieve in practise the 
establishment of leisure throughout the industrial 
life of the country, in accordance with that principle. 

Were statutes establishing the right to leisure 
already enacted and in force in accordance with the 
principles clearly laid dow'n by the Supreme Court 
of the United States, the multitude of men, women 
and children affected by them would be so great, 
the ramifications of industry embraced would be so 
far reaching, that relatively little would be left to 
the trade agreement with its precarious renewal and 
threat of strikes to secure enforcement. 

The immediate, practical lessons derivable from 
this weighty decision, for all those who believe that 
the right to leisure should be established by consti- 
tutional methods, appear to be briefly as follows : 

1. Legislation restricting the hours of labor of 
employees in occupations obviously injurious to the 
health will not be annulled by the Supreme Court 
of the United States on the ground of conflict with 
the fourteenth amendment to the Constitution of the 
United States, 

2. The short working day may be established by 
statute in the various states for all those occupations 
which are in themselves obviously injurious to the 
health of employees, and it rests Z\.'ith the state legis- 
latures to decide zvhich are such occupations. 

3. Legislation limiting the hours of labor of cm- 

163 



SOME ETHICAL GAINS 

ployees need not be restricted to women and minors, 
as had been the usage previously to 1898. 

4. It is desirable to provide for such legislation 
by inserting in state constitutions, wherever there 
is not already such an enabling article, a provision 
similar to the general article of the Massachusetts 
constitution, or to the special article providing for 
the rights of labor which forms the distinguishing 
characteristic of the new constitution of Utah. 

It is always to be remembered that these things 
do not occur spontaneously; they are the fruits of 
long and patient endeavor. Adverse decisions in 
states have cumbered the earth with error, discour- 
agement, apathy, if not actual antagonism to this 
sane and hopeful, though slow and difficult, method 
of ethical gain through legislation. 

The decision of the Supreme Court of the United 
States in the case of Holden vs. Hardy did but open 
the way, by sustaining a statute affecting a few hun- 
dred men in a state not highly developed indus- 
trially and by affording a precedent national in its 
scope, whereby may be done over again successfully 
work which, in several states, had once been done 
in vain. Yet it assures ultimate success to the long 
striving for the statutory enactment of the right to 
leisure. 

State constitutional conventions must be held; 
state constitutions modified; legislatures induced to 
act when authorized to do so ; state Supreme Courts 
brought to follow the precedent set by the Supreme 
Court of the United States. Years must be con- 
sumed in the work of education and legislation be- 
164 



JUDICIAL I N T F. R r R E T A T I O N 

fore the full fruits of this cnlic^htencd judicial inter- 
pretation can he reaped and enjoyed hy working 
people throughout the Repuhlic. Yet the ethical 
gain accruing at every step of the long process is 
amply worth the exertion which it costs. 

Trade Agreements and Statutes. — It is possible 
that at present a larger number of people enjoy 
some degree of settled daily leisure by means of 
trade agreements specifying nine or eight hours as 
their day's work than by reason of statutory provi- 
sions. Yet this is, from the point of view of the 
welfare of the community, the less desirable method 
of securing leisure, for several reasons. Leisure 
obtained in this way rests upon no acknowledged 
legal right ; it is gained by struggle and rests upon 
the power of the organizations on both sides to main- 
tain the terms of an agreement, enforcing them by 
strike or lockout ; it is never final, but always sub- 
ject to cessation at the termination of the agree- 
ment ; its existence for however long a time estab- 
lishes no legal right; at best it creates only a valu- 
able usage. Finally, this method of establishing 
some degree of settled daily leisure is open only to 
employees in those occupations in which the 
strongest type of trade organization develops ; /. c. , 
in which strength and skill are both required, and 
w'omen, children, and unskilled or feeble men are 
kept out of the labor market by the conditions of 
the trade itself. Such occupations are those of the 
locomotive engineer, the typographer (printing in- 
volves not only skill in setting type but strength to 
lift forms), the pilots of the ocean harbors and the 
i6s 



SOME ETHICAL GAINS 

great lakes, certain branches of mining and ore re- 
duction, and the building trades, with some branches 
of manufacture. The nature of the work selects 
men of certain qualifications, bodily, mental and in- 
dustrial, in all these cases; and such men are, in the 
nature of the case, better able to make favorable 
terms for themselves than can be made by the ten 
year old children of the Georgia cotton mills, or the 
victims of the sweating-system in New York City. 

For children and young girls, leisure assured by 
means of trade agreements of their own is unthink- 
able. Such workers can derive it by this method 
only indirectly and under exceptional circumstances, 
as when a trivial minority of them are engaged at 
work which interlocks with the work of men em- 
ployed in a trade bound by such an agreement. 

The maintenance of leisure by means of a trade 
agreement limiting the number of hours in a day's 
work, presupposes the permanent maintenance of 
militant trade organizations of selected workers 
ready to meet on their own terms any organization 
of employers. Indeed, for many years the men in 
such occupations as have been indicated willingly 
relied upon the strength of their organizations for 
obtaining leisure, as well as wages and conditions 
satisfactory to themselves. 

With all their well-recognized disadvantages as a 
method of obtaining leisure, trade agreements re- 
main indispensably necessary throughout a wide 
range of industry, because, as appears from the 
foregoing examination of the leading cases on the 
subject, statutory provision for daily leisure for 
i66 



JUDICIAL INTERPRETATION 

adult male workers in the employ of corporations 
and private employers is limited, in the opinion of 
the Supreme Court of the United States, to those 
industries which are, or may be, injurious to the 
health. In the case of non-injurious occui)ations 
leisure for men will have to be obtained and main- 
tained through trade agreements. 

The right to leisure, deeply felt by working people 
to be a human right which they are determined to 
assert, has been the subject of ceaseless struggle and 
will continue so to be until its assured possession by 
all the people takes it out of the realm of conten- 
tion. When, therefore, the Supreme Court of the 
United States limits the power of the states to re- 
strict the hours of work of adult citizens, to occupa- 
tions injurious to the health, it thereby relegates to 
the trade organizations and their trade agreements 
the task of maintaining, as a human right, by mili- 
tant exertions, that leisure which it fails to assure 
to a very large class of voters. 

Strikes on the largest scale, in which the estab- 
lishment of leisure constitutes an important element 
of contention, are to be expected as an integral part 
of industrial life so long as the Supreme Court of 
the United States maintains the position that the 
freedom of contract cannot be interfered with for 
the purpose of establishing by statutory provision 
daily leisure for adult employees in non-injurious 
occupations conducted by corporations and private 
employers. This is the inevitable result of devolv- 
ing upon trade agreements, in the case of adult male 
employees not engaged under contract by any gov- 
167 



SOME ETHICAL GAINS 

ernment and not engaged in an injurious employ- 
ment, the function performed by statutory provi- 
sions in the case of other large classes of work- 
ing-people. In the occupations thus outlawed, the 
result of the outlawry is the recourse to extra-legal 
means of asserting the human right which has not 
yet become a statutory right. 

The improvement of machinery is incessant; the 
output increases ; every occupation becomes more 
productive. On the other hand, the pressure of 
competition weighs upon employers ; dividends must 
be derived, irrespective of the strain upon em- 
ployees. Workingmen elect to receive a part of 
their share of the increased productivity of their 
labor in the form of a reduced working day, as 
added daily leisure; and, since the court tells them 
that this cannot be done by legislation, they have 
recourse to the one alternative, the trade agreement, 
enforced by strikes. 

The right to leisure is a human right in process 
of recognition as a statutory right. Wherever it 
is established, the objects of struggle between em- 
ployers and employees are in so far reduced. 
Where, on the other hand, courts have held that the 
right cannot be recognized and established by stat- 
ute, a ground of incessant contention is set up. In 
such communities, peace may be enjoyed by the 
public when, in a given trade, the inequality be- 
tween the parties is such as renders a demand for 
regular leisure utterly hopeless, as in the sweated- 
trades or trades in which children and women are 
present in large numbers, e. g., the Southern cotton 
i68 



JUDICIAL INTERPRETATION 

mills. Or peace may temporarily exist when b«)th 
parties are so equally powerful that both fear war- 
fare, and both profit by truce. This peace, how- 
ever, is always in danger of coming to an abrupt 
end by the introduction of some new machine, or 
by the immigration of some new and especially 
adaptable body of laborers. 

Critics of the effort to establish by statute the 
right to leisure may contend that the process is an 
intolerably slow one, that a statute, also, is liable to 
termination by repeal, is as little stable and perma- 
nent as a trade agreement and may prove exces- 
sively difficult to enforce. Such critics can easily 
make out a strong case for their contention. It is 
true that, after the constitution of a state authorizes 
the legislature to act, the legislature may fail to do 
so, as has been shown by recent events in Colorado. 
Or, a legislature may enact measures which are 
illusory for want of penalties, or by reason of ex- 
ceptions such as that which weakens the restriction 
upon the hours of labor of women in New York. 
Or there may be no provision for the appointment 
of factory inspectors, as in the case of the recent 
child-labor law of Alabama, which provides that 
children under the age of thirteen years shall not 
be employed at night in cotton mills, but makes no 
provision for officials to enforce the prohibition, and 
in the case of the mercantile employees law of New 
York City, where the Retail Dealers' Association 
succeeded in 1898, and each subsequent year, in 
having stricken from the municipal budget all ap- 
propriation for the salaries of mercantile inspectors. 
169 



SOME ETHICAL GAINS 

Or, effective ofificers may be removed and incompe- 
tents appointed in their places, as has happened in 
many states. 

Moreover, vigilance is needed even where work- 
able statutes are enforced by faithful officers, lest 
valuable measures be repealed after being in force 
so long as to seem beyond all danger of attack. A 
case in point is the repeal of the so-called "Fifty- 
Five Hours Law" in New Jersey, which had re- 
mained unaltered upon the statute books from 1892 
to 1903. This statute provided that women and 
minors under the age of eighteen years should not 
be employed in manufacture longer than ten hours 
in one day and fifty-five hours in one week, or after 
six o'clock in the evening of the first five days of 
the week and noon on Saturday. Although this 
law had never been passed upon by the court of last 
resort in the state, or enforced with vigor by the 
factory inspectors, it had nevertheless been the 
means of assuring unusual leisure to women em- 
ployed in industries in which men maintained pow- 
erful organizations and insisted upon compliance 
with the letter of the law, thus facilitating their 
own success in demanding the same leisure. The 
statute was so well regarded by a large number of 
employers, and a larger number of employees, that 
its repeal, in 1903, came as a distinct surprise. 

Statutes restricting the hours of work of railway 
employees, in the interest of the safety of pas- 
sengers, have in some cases been so defiantly and 
persistently violated by companies (holders of 
charters and franchises) as to drive the employees 
170 



JUDICIAL INTERPRETATION 

into striking in order to enforce the obedience of 
their employers to the terms of the law, when re- 
course to the courts seemed to the workers not cer- 
tain to bring forth a decision sustaining the terms of 
the statute. 

Yet, acknowledging the inevitable slowness of the 
process of statutory recognition of the right to 
leisure, and admitting all the difficulties and obsta- 
cles to be encountered in making progress and in 
maintaining it when made, it nevertheless remains ^ 
true that it is more dignified f or the w or king pe ople 
and infinitely more wholesome for the community 
to be enlisted in behalf of the enactment and en^ 
forcenfent of the law, than engaged^ia_sln„Yin£jP 
establish and maintain a jj^rhj^ y/i^^hout rf<^ni,irsg_to 
the law. 



171 



CHAPTER V 

THE RIGHT OF WOMEN TO THE BALLOT 

It is now generally accepted that that legislation 
has proved wholly beneficent which has, during the 
past half century, afforded to women and girls their 
present wide-spread opportunity for education. In- 
deed, we are so accustomed to it that we realize with 
difficulty the fact that such provision on so large a 
scale is new to human experience. As a result of 
this far-reaching movement there is present in the 
community an element of distinctive intelligence 
available for social and civic usefulness such as never 
before existed. That we are far from getting the 
full benefit of the virtue and intelligence stored up 
in the community ; that the leisure and culture which 
have come to home-keeping women might be utilized 
on a far larger scale than we have yet attained ; that 
an ethical gain has been made whenever the new in- 
telligence of women has become available in the body 
politic; and, finally, that other important gains may 
reasonably be expected in proportion as its avail- 
ability is extended by conferring the franchise upon 
women, it is the object of this chapter to indicate. 

It has been urged by opponents of the enfranchise- 
ment of women, that there are other methods by 
which this intelligence may be utilized without 
172 



RIGHT OF WOMEN TO BALLOT 

active participation in political life, and this is not 
denied. Indeed, men who are faithful in the per- 
formance of their duty as voting citizens carrv on, 
in addition thereto, many lines of social and civic 
activity. They do not, however, appear to believe 
that they would be more valuable in the performance 
of these voluntarily assumed tasks if relieved of their 
political duties. It is not members of philanthrojjic 
and civic committees who absent themselves from 
the polls ; on the contrary. Why, then, should not 
women follow both lines of activity and prove even 
more effective in their philanthropic and educational 
work, by reason of their added powers as voting 
citizens ? 

Does anyone believe that the efforts of the Public 
Education Association of New York would have 
been less effective during the past ten years, if they 
had been reen forced by the presence in the electorate 
of the mothers, the teachers, and the other interested 
w^omen, including the members of the Association it- 
self? 

The fear lest the votes of ignorant women may 
outweigh those of the intelligent could be met by 
the imposition of an educational requirement such as 
is already in force in Massachusetts. The utterly 
unreasonable fear that the votes of the depraved 
may outnumber those of the righteous scarcely needs 
mention. The balance of virtue and depravity 
among women compares at least fairly with that of 
the present electorate. 

Women's Opportunities on Public Boards and 
Commissions. — Naturally, the first tentative step in 
173 



SOME ETHICAL GAINS 

the direction of securing for the community the bene- 
fit of the newly attained intelligence embodied in 
educated women, took the form of appointment of 
women upon public bodies having to do with women 
and children. In this connection, however, there 
must be noticed the curious phenomenon that some 
women, whose valuable services entitle them to a re- 
spectful hearing, have expressed the opinion that, in 
such positions, women may be of greater value by 
reason of their non-political position, which gives 
assurance of disinterestedness not thought attainable 
by voting citizens. It seems to indicate a not unnat- 
ural loss of the sense of proportion that these faithful 
servants of the community, deeply impressed with 
the great need for work such as they have been doing, 
should forget that their number is so insignificant as 
to weigh but lightly in comparison with the disad- 
vantage arising from the loss out of the voting mass 
of the accumulated intelligence of the vast body of 
women, including all the teachers. Indeed, these 
alleged, exceptional cases of advantage arising from 
the non-political position of women serving in public 
capacities must be regarded as fully ofifset by those 
other cases in which able women, also serving on 
boards, have found themselves shelved by being 
placed on committees and sub-committees whose 
work was unimportant ; and far more than ofifset by 
the exceedingly small number of women serving at 
all in such capacities compared with the great num- 
bers who are qualified by nature and education for 
this work. 

In general, the statement is true that in states in 
174 



RIGHT OF WOMEN TO BALLOT 

which women do not vote, they arc not appointed to 
salaried positions on pubHc boards and commissions, 
unless it is expressly provided in the statute creating 
the public body that a certain proportion of the mem- 
bers shall be women. Where the word may is used, 
there is a strong tendency towards the gradual re- 
placement of non-voting women by voting men. 
And in many cases this involves a distinct loss to the 
dependent persons in whose interests such public 
bodies exist. Nor is this disparity confined to sal- 
aried positions. It is also most unusual to find an 
equal number of men and women on unpaid boards 
and commissions, even when the duties required are 
such as women are preeminently fitted for, and 
where the number of available women of intelligence 
is very large, as in New York and Massachusetts. 

The precarious nature of the opportunity for pub- 
lic service open to women, where they have not been 
admitted to the electorate, is well illustrated by an 
episode in the recent history of Illinois. During his 
term of office, 1893-1897, Governor Altgeld ap- 
pointed fifteen women to state boards of education, 
health, charities, factory inspection and the manage- 
ment of penal and reformatory institutions, among 
them women of such well-known philanthropic 
activity as Miss Julia C. Lathrop, Mrs. Alzina 
Stevens, and Dr. Sarah Hackctt Stevenson. All 
these appointees served the state faithfully and sev- 
eral wMth distinction. The succeeding governor, 
however, continued the appointment of only two of 
the fifteen, replacing the remainder with men. who 
were voters. 

175 



SOME ETHICAL GAINS 

A more recent example of the same precarious op- 
portunity for service is afforded by the experience of 
the women members of the London School Board. 
From 1870 to 1902, women both voted for the mem- 
bers of the board and were eligible for election to it, 
several women having served long and usefully. 
But in 1902, Parliament legislated the School Board 
out of existence and, in 1903, relegated its duties to 
the County Council, for election to which women are 
not eligible. In this case a twofold right, — that of 
voting for the members of the School Board and 
of serving upon it, — was legislated out of existence 
after having been exercised for more than thirty 
years. Parliament, which used its powers to this 
end, is, of course, wholly independent of women, 
since they possess only the municipal franchise and 
the right of voting for members of the School Board. 
Obviously those minor forms of the franchise, and 
the right of serving on boards for public purposes, 
are held by an insecure tenure until the full power, 
the Parliamentary franchise, confirms their posses- 
sion. 

Despite the unstable nature of their opportunities, 
however, women have begun to work out interesting 
and suggestive changes in certain branches of the 
local governments. Thus, in connection wath the 
police department, which was formerly regarded as 
utterly alien to them, women now serve as police 
matrons and probation officers, regularly recognized 
as officers of the court. Women attendance agents 
connected with the schools prevent many children 
from needing the attention of the men officers, and 
176 



RIGHT OF WOMEN TO BALLOT 

may be regarded as in a sense preventive or substi- 
tute police. Reformatories for women and girls, 
established and maintained out of the public funds, 
and conducted by women, are beneficent manifesta- 
tions of the same tendency to utilize the fund of new 
intelligence for communal purposes. In the same 
line of modification of the courts and their personnel 
is the activity of women lawyers as counsel for So- 
cieties for the Legal Protection of Women and Chil- 
dren. This is perhaps the most gracious form of 
activity yet accessible to the growing number of 
women who have read law ; and the marked improve- 
ment in the attitude of the Bench towards women 
and minors in both civil and criminal cases of im- 
portance, observable during the past fifteen years, 
is believed by the writer to be directly due to the 
patient efforts of many such societies. 

Women who serve as inspectors of immigrant 
women and children, both meeting incoming vessels 
at the Atlantic ports and awaiting the arrivals at 
Ellis Island, are filling posts of duty of the highest 
value both to the immigrants and to the society of 
which they may become a part ; as are the women 
acting as factory inspectors, sanitary inspectors and 
inspectors of tenements. The addition of nurses 
wdio have received hospital training to the federal 
army and to the public schools of the city of New 
York, is another form of enrichment of the re- 
sources of the community by reason of the newly 
acquired intelligence among women. Unfortunately, 
the small number and insecure tenure of office of 
these valuable servants of the public still deprive the 

12 177 



SOME ETHICAL GAINS 

community of a vast deal of useful service which 
cannot become available until the constituency attains 
its full complement of women voters as much inter- 
ested in these human affairs as the present con- 
stituency is absorbed in manufacture, commerce and 
transportation. 

Need of Women in Educational Work. — By 
nature, by training, and by the accepted usage of the 
national life, women are chiefly occupied with the 
care, nurture and education of the young. More- 
over, for reasons economic as well as pedagogic, the 
teachers in the public schools are largely women. It 
was, therefore, in following the line of least resist- 
ance that women have, in many places, become eli- 
gible for appointment or election to the school- 
boards ; or enfranchised sufficiently to vote for the 
members of the boards of education. It is the belief 
of the writer that the results of such enfranchisement 
are conspicuously beneficial ; that a broad line divides 
the communities in which women perform the duties 
of voting citizens in all matters relating to the 
schools, from those in which they are prevented from 
exercising those functions. It is the commonly ac- 
cepted division of labor throughout the Republic 
that men are occupied with business and professional 
duties, and women take care of the children. In 
the administration of the schools this division of 
labor expresses itself in the fact that the teaching 
staflf, which comes into daily contact with the children 
and is intimately acquainted with their needs, is com- 
posed chiefly of women, but the business of the 
schools, the work of the board of education, is con- 
178 



RIGHT OF WOMEN TO BALLOT 

ducted either wholly by men or by boards on which 
men constitute the majority of members. The con- 
sequences of this division, in communities in which 
women do not vote, are conspicuous. Business prin- 
ciples (keeping down the tax-rate), modified by 
political interest (corrupt awards of contracts, the 
spoils system in the appointment of teachers, etc.), 
exercise an undue influence, — greater than the con- 
sideration of the interests of the children, which do 
not readily become known to the business-men who 
compose the boards of education. 

A case in point is the experience of the children in 
the schools of the city of Chicago. It is stated by 
citizens of Chicago, long and intimately acquainted 
with the Board of Education, that the membership 
of the board has in recent years, been composed with 
reference to the industrial and sectarian interests of 
the city rather than with exclusive reference to the 
welfare of the children. The railroad and trac- 
tion companies (eager to keep down taxation), the 
real-estate and building interests, (alert in the mat- 
ter of buildings and sites), the book-trust (ardently 
opposed to the introduction of free text-books), the 
school furniture companies, and certain ecclesiastical 
interests (keen to secure the appointment of teachers 
each after its own faith), are all said to have been 
represented by men of excellent ability upon the 
Board of Education. But the children and the 
teachers appear to have been somewhat lost sight of 
in the general concentration of zeal for the interests 
of manufacture, commerce and sectarian religion. 

While it is true that there have been, for a number 
179 



SOME ETHICAL GAINS 

of years, one or more women members of the Board 
of Education in Chicago, they constituted a mere 
vanishing minority of the whole number of members, 
not sustained by a constituency of voting mothers, 
teachers, and other interested women, but appointed 
by the mayor of the city, apparently as a concession 
to the demand that the Board of Education shall not 
be wholly devoid of women. Their influence has, 
therefore, been of the slightest and seriously disap- 
pointing to such friends of the children and the teach- 
ers as have hoped unduly much from the mere pres- 
ence in the membership of the board of women, 
unsustained by the power of an interested voting 
constituency. 

Some of the results of the preponderant interest of 
the Board of Education in subjects apart from the 
v/elfare of the children of the city of Chicago, are 
picturesquely shown by the experience of a young 
neighbor of the writer. This Italian girl entered 
the public schools in early childhood, attending irreg- 
ularly after the fashion of Italian children and with 
the connivance of an incompetent truancy depart- 
ment. In the course of eight years devoted chiefly 
to the study of language, she acquired the least pos- 
sible broken and ungrammatical English. Seeing 
on the wall of the settlement a picture of Washing- 
ton, she said confidently, "I know him, first man !" 
Being asked his name she said with certainty in her 
tone: "I learn him in school. First in peace, first 
in war, first in hearts of countrymen! Eyetalian 
man." Being pressed for his name, this product of 
the schools said, "Garibaldi !" 
i8o 



RIGHT OF WOMEN TO BALLOT 

Such was the foundation of Enghsh, liistory, and 
intehigent devotion to the ideals of the American 
Rcpubhc with which this adopted citizen left school, 
and entered upon the serious business of education in 
a neighboring bakery belonging to the biscuit trust. 
There she learned at once that her continued employ- 
ment depended upon her becoming one of the Lady 
Cracker Packers, whose ideals she found it easy to 
understand and appreciate. Within a year she 
learned to vote as to the amount of dues which she 
and her fellow workers should pay, and how these 
dues were to be expended, for what purposes and by 
what officers, in the election of whom she naturally 
participated. She attended meetings, at which the 
objects of the organization were explained, and was 
taught that her short working day depended upon 
the strength of the organization. To this organiza- 
tion she devoted the fervor of the Latin temperament, 
which had never been aroused by the daily per- 
functory salute to Old Glory at the opening of the 
sessions of that school which had left her to believe 
that George Washington's name was Garibaldi. At 
the age of sixteen years this girl was thoroughly ac- 
customed to exercising in the union of her trade all 
those functions which at twenty-one she will still be 
unqualified for in the larger life of the common- 
wealth. The union looms correspondingly large in 
her consciousness. 

The state of Illinois, through the decision of the 

supreme court, tells this girl that it is powerless to 

restrict the hours of daily work which the biscuit 

trust requires of her; but the union confidently un- 

i8i 



SOME ETHICAL GAINS 

dertakes the task by means of organization and its 
label, with the possibility of a strike in the back- 
ground. When the state tells her through another 
decision of the court that it is powerless to constrain 
the biscuit trust or any other employer to pay her 
wage weekly in money of the United States, the 
union performs this function effectively by the same 
means, — organization, the use of the label and the 
possibility of strikes. 

When the lads with whom she works reach the age 
of twenty-one years, their interests are broadened and 
their allegiance to the union divided by the demands 
of the political parties upon their attention. Even on 
the most sordid plane of their immediate self-interest, 
the city council and the state legislature claim their 
thoughts. But the girl on reaching twenty-one years 
will have escaped from all farther educational influ- 
ences ; will have been long married and actively en- 
gaged in bringing up in the most unreasonable man- 
ner the large family which continues to the second 
generation in the Italian colonies. She will feed her 
infants bananas, bologna, beer and coffee ; and many 
of these potential native citizens will perish during 
their first year, poisoned by the hopeless ignorance 
of their school-bred mother. She, however, will al- 
ways remain a faithful ally of the union as the only 
institution which has ever invited her intelligent par- 
ticipation. 

However convinced one may be of the value of 
the trade union in the community, it is hardly reas- 
suring that, in the presence of the vast machinery of 
public education, the union should be, in practise, 

1 82 



RIGHT OF WOMEN TO BALLOT 

the chief educational ag-ency vitally affecting the chil- 
dren and young girls in the immigrant colonies of 
the great manufacturing centers. 

This girl is only one of thousands who are carried 
on the rolls of the public schools for years, but whose 
lives are so little touched by the work of the schools 
that, after two or three years in the factory, they 
have forgotten how to read unless, indeed, they are 
gathered into some union which carries forward their 
education in a one-sided manner, wholesome enough 
if balanced by other broadening and deepening ex- 
periences, but sadly inadequate as a substitute for 
the education supposedly afforded by the public 
schools to all the children. 

Wherever a powerful business interest is involved, 
laws are readily enforced in its behalf and the admin- 
istration of local government rises to meet its re- 
cjuirements. This has been strikingly illustrated in 
the efficiency of the fire department of Chicago 
throughout all the years of the uttermost political 
corruption of the city, when every other department 
reached the deepest depths of incompetence and in- 
efficiency. The fire marshal of the underwriters 
arrives at the scene of every conflagration, large or 
small, as soon as the city's firemen, if not sooner ; — 
and woe betide the man, or beast, or machine that 
falls below the highest achievement possible in every 
given case. 

It is the contention of this chapter that women, all 
women, of a given community have the same interest 
in the children that the undervv filers have in the con- 
flagrations and the administration of the lire depart- 

183 



SOME ETHICAL GAINS 

ment. But, while the underwriters are voters, con- 
tributors to campaign funds, and representatives of 
the keenest interests of the business men, and have 
for all these reasons, very great local power to con- 
strain the municipality to keep its fire department up 
to the highest point of efficiency, the women of Chi- 
cago have no corresponding power of making felt 
their interest in the schools. The community is, 
therefore, denied a reenforcement of moral power, 
and of educational interest, which it sorely needs to 
counterbalance the excessive pressure of businss in- 
terest. 

To the preponderance of the interests of business 
over the interests of the children, expressed in the 
majority of business men and the minority of women 
on boards of education, is due, doubtless, in other 
cities as well as in Chicago, the idiosyncrasy of the 
curriculum whereby the daughters of working-people 
are taught just those things which tend to make them 
valuable as stenographers, typewriters, cheap book- 
keepers, clerks, copyists, — if they stay in school 
throughout the years of compulsory attendance. If 
they drop out earlier, they have still acquired habits 
valuable for factory hands of low grade and miser- 
able pay. They have been taught punctuality, 
obedience, working in crowds, listening to instruc- 
tions. What more does a cheap factory hand need 
for beginning work? But of the qualities which fit 
girls for home-making and intelligent motherhood, 
what preparation for the development of these have 
our business men been able to imagine and introduce 
into the curriculum? True it is that, in rare cases, 
184 



RIGHT OF WOMEN TO BALLOT 

a woman serving- upon a school board has carried 
weight enough, by reason of unusual personality, to 
override the adverse pressure of other influences and 
secure the introduction of some slight beginnings of 
domestic science into the schools. But this has oc- 
curred in those schools which needed it least, /. c, 
in the upper grades, which are not reached by the 
children of day laborers. For the general introduc- 
tion of domestic science into the lower grades, in 
which the children of the immigrants spend their 
sadly few school years, the lack of space and the cost 
of equipment on the necessary large scale have 
hitherto been effectively deterrent. It is here that 
Boston stands forth as a fine example of the effects 
of admitting to the electorate in the matter of the 
schools those who know most of the children's needs, 
the women of the community, including the mothers 
and the teachers. 

In London, too, for more than a quarter of a cen- 
tury, the women elected to the School Board have 
assured to the girls in the board-schools at least in- 
struction in cooking. As long ago as 1879 ^^ 
writer enjoyed the privilege of visiting, with Miss 
Hill, a member of the board, one of the cooking- 
centers in a London board-school to which little girls 
came from neighboring schools; and the memory 
abides quite fresh after the lapse of so many years, 
of one little girl who, after cooking peas, carefully 
wrapped them in a copy of the London Times to 
carry them home to a family whose tastes evidently 
needed cultivation in the maattcr of vehicles for the 
transportation of soft, moist, warm vegetables. 
i8s 



SOME ETHICAL GAINS 

Due to the preponderance of the interests of busi- 
ness over the interests of the children in the com- 
position of school boards including few or no women, 
is the almost universal absence of adequate school 
accommodations. It is not an accident, but a fact of 
the highest significance that the two important cities 
in the United States which afford school accommoda- 
tions for all the children throughout the period of 
compulsory attendance at school are Boston, where 
women vote for the members of the Board of Edu- 
cation, and Denver, where women vote for all 
officials. Does anyone doubt that the enlightened 
policy of Boston and of Denver is due, in large 
measure, to the influence of the women teachers in 
the electorate? Granted that, in Boston, the Build- 
ings and Grounds Commission is separate from the 
Board of Education, the interest in school questions 
engendered by the annual election of members of the 
Board of Education, and the general participation of 
women voters both in the election and in the annual 
lively campaign which precedes it, keep the tax- 
paying public apprised of the inner condition and life 
of the schools to an extent impossible by any other 
means and actually not approached in other cities. 

By reason of the rapid growth of American cities, 
the provision of adequate seating facilities for the 
increasing number of children constitutes one of the 
most difficult problems with which boards of educa- 
tion have to deal. Families move from older por- 
tions of a city where school buildings are first erected, 
and it is not easy to foresee and provide for the sud- 
den expansion of one suburb or another. Moreover, 
i86 



RIGHT OF WOMEN TO BALLOT 

there are influences at work uninterruptedly, bring- 
ing to bear silent pressure adverse to the expenditure 
of funds sufficient to provide seats and equipment for 
all the children. Taxpayers desire a low tax-rate, 
not perceiving that cheap primary schools involve in 
the long run costly reformatories, and jails, accom- 
panying an untrained and unintelligent working 
class. Corporations desire an abundant supply of 
available children to work at trivial wages. Children 
for whom there is no school room begin to work 
earlier in New York City despite the excellent new 
statutes, than children in Denver or in Boston who 
are kept in school to the age nominally required in 
New York. In New York city, where the Board of 
Education is appointed by the Mayor, who in turn 
is elected by the suffrages of men only and who does 
not usually appoint even one woman to the central 
board, the deficit in school seating accommodations 
has not for many years been less than fifty thousand. 
Indeed, no administration ventures to take a school 
census, because no administration can afford to let 
the actual deficit be accurately ascertained and defi- 
nitely located. It is politically safer to pooh ! pooh ! 
the estimates of the friends of the unfortunate ex- 
cluded children and the children in half-day sessions, 
than to face the facts as they would be recorded by a 
school census. 

The inability of boards composed wholly or chiefly 
of business men to deal adequately with the business 
of the board, i. e., the education of the children of the 
city, is revealed on a vast scale in the case of the chil- 
dren who fail of promotion. The most overcrowded 
187 



SOME ETHICAL GAINS 

classes are the lower ones, and these are congested 
largely by reason of the presence in them of children 
who have been in school long enough to have been 
moved on into higher and less crowded classes if 
they had been ready for promotion in due order. In 
London, where women have voted for the School 
Board and have served on it for thirty years, the 
scope and gravity of the problem of the children 
who fail of promotion have long been recognized, 
and comprehensive efiforts to deal with it are per- 
sistently made. In New York, where the same prob- 
lem has existed since the foundation of the public 
schools, it was not discovered, and then by a woman 
superintendent, until the year 1903, when the new 
law took effect which requires that children, before 
beginning work in manufacture and commerce, must 
be fourteen years of age and must also have accom- 
plished as much of the work of the curriculum as a 
child of twelve years who had failed of no promotions. 
Several causes of the failure of children to move for- 
ward in due order are removable by the Board of 
Education, e. g., the half-time classes arising from 
insufficient school accommodations ; the excessive 
number of children carried on the roll of one teacher ; 
the suspension of unruly boys who, until very re- 
cently, were not brought before a magistrate and 
committed to a school, but merely turned into the 
street to waste their school years in idle mischief or 
to go to work in violation of the child-labor law ; the 
dismissal of children by visiting physicians (before 
the very recent appointment of nurses who now fol- 
low up the children and get them back into school 
188 



RIGHT OF WOMEN TO BALLOT 

with the least possible loss of time). Other causes 
of the failure of children to be promoted are munic- 
ipal defects curable if the Board of Education made 
effective demand for cure. Among these is the in- 
sufficient provision for hospital care of infectious and 
contagious disease. Because scarlet fever and 
measles are left to be nursed in the tenements, healthy 
children of the family spend weeks and months in 
banishment from school and fail of promotion 
through no fault of their own. 

Does anyone doubt that American cities which 
should follow the example of London and enlist 
women of discretion and leisure as school visitors 
would make short work of the clogging of the lowest 
grades by children who are wasting their own time, 
that of the teachers, and that of the children who 
properly belong in these grades? Could there be a 
more unbusinesslike procedure than this defeat of 
the purpose of the schools, for want of the personal 
contact of women with the children, in work supple- 
menting that of the schoolroom tasks of the teachers ? 
It is clearly due to the passive role assigned to all 
women except those professionally engaged in the 
schoolroom. 

The consequences of this clogging of the lowest 
classes are many and evil. Among them is the tru- 
ancy of children discouraged by failing of promotion, 
with the attendant probability of arrival in the 
juvenile court under the charge of playing ball in 
the street, or some similar anti-social ofifense, or of 
arrival at the legal age for beginning work without 
having accomplished the meager amount of school 
189 



SOME ETHICAL GAINS 

work required by the law, an experience which bears 
most heavily upon those families in which it is most 
liable to occur, — those of the very poor. 

In this relation, the interests of the teachers and 
the children are strictly identical ; it is most desirable 
for the teachers that school accommodations should 
be abundant and wholesome ; that the children in one 
class should not exceed thirty ; that salaries for teach- 
ers should be such as to enlist in the profession able 
and well-trained persons. To enfranchise the teach- 
ers is to give to the children the best informed pos- 
sible advocates in the electorate, and to strengthen 
every effort made on behalf of the unfortunate chil- 
dren who now fail of promotion year after year and 
finally defeat the object of the schools either by fall- 
ing out without completing even the required mini- 
mum of work, or else cover each stage long after 
they have passed the age to which it is appropriate, 
and when it has lost all real value for them. 

Protection of Children in Colorado. — Com- 
pared with the children of New York City the chil- 
dren of Denver appear to be singularly fortunate in 
the protection which they receive by means of legis- 
lation. A child in Denver is required to attend 
school regularly to the age of sixteen years, unless he 
is released from this duty by the joint action of the 
superintendent of schools and the county judge ; and 
in that case he must complete the work of the first 
eight years of the curriculum of the public schools. 
A boy released from school attendance is subject to 
the supervision of the two authorities mentioned, and 
can work only on condition that his record continues 
190 



RIGHT OF WOMEN TO BALLOT 

satisfactory to them, being kept on the roll of the 
juvenile court, not as an offender, but as a ward of 
the court. If he should be required or permitted by 
an employer to work longer than eight hours in a 
day, or at an occupation injurious to his health, it 
is within the power, and is clearly the duty of the 
superintendent and the judge to cancel his permit 
and return him to school or require a change of his 
occupation. 

Where the great body of children in a city are 
kept in school until they reach the age of sixteen 
years, and all must finish the work of the first eight 
grades of the public schools, the rising generation 
goes into the bread-winning occupations with an un- 
usually high level of efficiency of mind and body ; 
and where all the wage-earning children under the 
age of sixteen years are virtually w^ards of the court, 
the exploitation or demoralization of children by 
means of their work becomes almost impossible. 

In Colorado, children under the age of sixteen 
years enjoy, also, an unusual degree of protection by 
reason of that brief and comprehensive statute which 
renders any person who contributes to the deli''- 
quency of a child liable to a fine or imprisonment not 
exceeding one year. Under this recent statute, the 
dealer who sells a cigarette to a boy, the mother who 
sends a child to fetch beer, or who permits him to 
read dime novels so that he is led to run away, the 
telegraph operator who sends a boy to a disreputable 
house to deliver a telegram or message, the coal- 
train conductor who permits a child to "hop a train" 
or to pilfer coal, — one and all may be brought into 
191 



SOME ETHICAL GAINS 

court, placed under a suspended fine for the first 
offense, and sent to jail for a year if any continue to 
offend. In practise, more than a score of fathers 
were sent to jail during the first half of the year 
1904, for contributing to the delinquency of their 
children. Hardship to their unoffending wives aris- 
ing from loss of the earnings of the bread-winner 
was obviated by arranging to have the offender in 
jail only from Saturday noon to Monday morning, 
the remainder of the sentence being suspended. 

It is the common experience that statutes of ex- 
ceptional rigor for the protection of children are apt 
to remain dead letters, and this has been sadly true 
of child-labor laws, where powerful corporations 
have secured the removal of officials who were con- 
scientious and efficient in enforcing such measures. 
How, then, is it to be accounted for that the county 
judge of Denver has for years enforced penalties 
upon saloon keepers, cigarette dealers (irrespective 
of their relation to the brewers, the whiskey trust 
and the cigar trust), telegraph operators (agents of 
two of the most powerful corporations, and the larg- 
tl"cSt single employers of boys in the Republic) ; and 
has, nevertheless, not only not been retired from 
office but, on the contrary, was the only candidate 
upon whom every political party in Denver united at 
the last election? Citizens of Denver assert that 
this significant fact is due to the voting mothers, 
teachers and other interested women in Denver. It 
is- a part of the recent history of the city that, when 
the corrupt political machine found Judge Lindsey 
unbending in his opposition, it dropped his name 
192 



RIGHT OF WOMEN TO BALLOT 

from the proposed list of nominees for the next elec- 
tion. But when the women of Denver heard of this, 
they held meetings and made known their will in 
such effective manner that, when the day came, no 
other name appeared as candidate for the office of 
county judge upon the ballots of any of the seven 
political parties which complicate elections in that 
lively city. 

Opponents of the extension of the franchise to 
women have pointed out that political corruption in 
Colorado still exist%, despite the fact that women 
have for ten years been admitted to the electorate. 
But in so doing, they mistake the direction in which 
ethical gain is to be expected to result from the en- 
franchisement of women. Political corruption is not 
a matter of sex ; it results from the unethical basis of 
our business activities, and cannot be abolished until 
that basis is altered and made ethically sound. The 
ethical gain which may reasonably be expected from 
admitting women to the electorate is the extended 
activity of those members of the community who are 
primarily interested in the nurture and safeguarding 
of the young. 

A suggestive comparison is that between the cher- 
ishing and nurture afforded to the children of Colo- 
rado by means of legislation due to the voting con- 
stituency of women, and the unsheltered state of the 
children of Georgia, where women are in every way 
excluded from public life, and where boys and girls 
at any tender age are wholly without protection from 
the demands and the cruel neglect of cotton-mill 
owners, as is indicated in the decision of the Su- 

13 193 



SOME ETHICAL GAINS 

preme Court of Georgia in the case of the Canton 
Cotton Mills. 

Equally suggestive is the comparison of the de- 
fenseless position of girls in South Carolina, where 
women have no political power and the age of con- 
sent is ten years, with the careful safeguarding of 
girls in Colorado. It is not accidental that one of 
the first measures introduced into the legislature of 
Colorado after women were elected to that body, was 
the bill successfully carried by a woman senator, 
raising the age of consent to eighteen years, at that 
time higher than the corresponding law of any other 
state. Such a law affords protection to the boys and 
youths of the community which they are wholly un- 
able to estimate. It saves them those temptations 
which beset youth in communities in which, as in 
North Carolina, the offense of tempting girls carries 
but a slight penalty, if any, with no certainty of en- 
forcement against a white man. When the age of 
consent is raised to eighteen years, this is a protection 
not only to all the young girls and boys in the com- 
munity, it is a protection to the community itself 
against the children of ruined girls. Denver needs 
no foundling asylum like that institution which con- 
fesses the disgrace of New York City. It is at the 
opposite pole from the legally sanctioned and medic- 
ally supervised vice of the cities of Continental 
Europe, with the accompaniment of lock hospitals 
and foundling asylums. It now remains for Col- 
orado to deal effectively with the quacks and their 
newspaper advertisements, and to substitute for 
their polluting influence wise instruction in phys- 
194 



RIGHT OF WOMEN TO BALLOT 

iology, biology and morals, in the public schools. 

Never before in human history has the right of 
the young to pure living, the claim of the adolescent 
to guidance and restraint, the need of the child for 
nurture at the hands of father, mother, school and 
the community been recognized as in Colorado to-day. 
Never have the good influences of good homes re- 
ceived such reenforcement by means of legislation. 

These gains have not been made because the sub- 
ject matter ever developed political issues. Elec- 
tions have not hinged upon them. But the accent 
has been shifted ; the emphasis is different. It ap- 
pears that, on the whole, the interests of children and 
youths are unusually well guarded in a community 
whose affairs are all carried on by men and women 
together. 

Advantages of the Recognition of the Right of 
Women to the Ballot. — The slight contribution 
of time, thought and effort required of all the voting 
citizens, if spent by all, not merely as at present by 
men, may reasonably be expected to prevent the need 
of much of the remedial and reformatory work now 
demanded of individuals for individuals. Infancy, 
old age and the misfortunes of congenital defectives, 
constitute a legitimate claim upon the leisure and 
charity of women, as of men. But the endless, 
cheerless task of attempting to repair by philan- 
thropic methods the wreckage due to bad laws, 
which women have no part in making, and the lax 
enforcement of good laws, is a burden which should 
no more be inflicted upon women than the task of 
enforcing demands for industrial improvements in 
195 



SOME ETHICAL GAINS 

the lot of workingwomen arbitrarily disfranchised 
should be saddled upon workingmen. 

Reference has been made to the value of the addi- 
tion of the women teachers to the electorate. It re- 
mains to point out a distinct disadvantage arising 
from their continued disfranchisement. It is, for 
instance, an anomaly not likely to remain permanent 
that many able and successful teachers of civics and 
political and industrial history to boys and young 
men are women who are themselves not voters. 
The effect upon the minds of the pupils must be 
highly confusing. They seem forced to the infer- 
ence that these subjects are of minor importance, 
since they can be taught by persons who are not per- 
mitted to perform the duties and functions which 
form the real content of the teaching. But what 
could be more unfortunate for the Republic than to 
inculcate in the minds of coming voters any idea 
calculated to minimize the importance of the subjects 
of civic duties and political and industrial history ? 

In an essay strongly adverse to the admission of 
women to the electorate, published in 1893 by Mr. 
Goldwin Smith, there occurs the following passage : 
''Woman's Suffrage is a change fraught with the 
most momentous results, not only to the common- 
wealth but to the household. Let Wyoming and 
New Zealand try it, say for ten years. The success 
of the Wyoming experiment is publicly proclaimed 
and the universe is exhorted to do likewise by 
Wyoming, whose voice is now that of the female 
voters. Private accounts are not so favorable, nor 
have the neighboring states, which must have the 
196 



RIGHT OF WOMEN TO BALLOT 

clearest view of the results, been induced to follow 
the example. To Wyoming for the present, 
Woman's Suffrage in the United States remains con- 
fined. The New Zealand experiment will be more 
satisfactory, though New Zealand, having no warlike 
neighbors, does not run the same risk of emasculat- 
ing her government which is run by a European 
State. If at the end of ten years it appears from the 
two experiments that legislation and government 
have become wiser, more far-sighted, and more just, 
without detriment to the peace and order of the home, 
let the world follow the example, and be grateful to 
those by whom the first experiment was made." 

It is worthy of note in this connection that, accord- 
ing to the latest census of the United States, Wyo- 
ming heads the list of all the states when they are 
graded according to the number of children between 
the ages of ten and fourteen years who are illiterate. 
Including the Indians, Wyoming is charged with but 
^2 such children. Inquiry has elicited the fact that 
this is due directly to the efforts of the women voters, 
who long since worked out a plan by which traveling 
teachers are sent to remote portions of the state, 
where scattered children are gathered from ranges 
and ranches until they can read, when the teacher 
proceeds to another post and the process is repeated 
with another gathering of children. In order that 
the children may not forget what they have learned, 
traveling libraries are sent in the wake of the 
teachers. 

It is respectfully submitted that the period sug- 
gested by Professor Goldwin Smith has elapsed; 
197 



SOME ETHICAL GAINS 

that the three neighboring states, Colorado, Utah and 
Idaho have now all followed the example of Wyo- 
ming; that legislation has become wiser, more far- 
sighted and more just without detriment to the peace 
and order of the home. Moreover, the Australian 
Federation and South Australia have followed the 
example of New Zealand. What is to be gained by 
farther delay? 

Within the family an interesting and ennobling 
modern relation due to the education of women is the 
mutual sympathy, respect and understanding between 
the college-going youth and his college-bred mother. 
The unconscious contempt, mitigated by affection, 
felt by Pendennis at Oxford for Helen at home in 
the country, is alien to the experience of sons whose 
preparation for college has been guided by the joint 
counsels of both parents. On a larger scale the same 
seriousness of respect of adult sons for their mothers 
may be noted even by casual travelers in states in 
which women vote on all subjects. Something of 
this greater unity of interest between mothers and 
their adult sons and daughters in the performance of 
a common duty of the highest importance, may rea- 
sonably be expected in humbler walks of life with the 
extension of the ballot to women in the great indus- 
trial states. At present, this form of common inter- 
est exists among the members of a family of work- 
ing-people chiefly where the wife has, before mar- 
riage, been a wage-earner and member of a trade- 
union, and after marriage continues her interest as 
an active member of the Union Label League or the 
Women's Trade Union League. It would surely be 
198 



RIGHT OF WOMEN TO BALLOT 

more wholesome for the family and the Republic, to 
extend the common interest of mother and adult 
sons and daughters to the affairs of the whole com- 
monwealth, than to leave it confined exclusively to 
the industrial affairs of life. 

It is now more than twenty years since the writer 
printed in the International Rcviciv a paper on "The 
Law and the Child" in which it was pointed out that 
the two agencies which had chiefly modified the life 
of the children of the working class during the nine- 
teenth century were the development of steam-driven 
machinery, which had made the labor of children 
available on a large scale in manufacture, and the 
emergence of women from the exclusively domestic 
life of former centuries to a participation, first in 
the education, and later in the philanthropic and 
educational work of modern times. During the in- 
tervening years since the publication of that paper 
the task of obtaining or promoting legislation on be- 
half of workingwomen, girls and children, or of 
securing its enforcement, has never ceased to be one 
of the deepest interest. The progress achieved, 
however, is so slight, the obstacles in the way of any 
real protection for young children are still so great, 
in all the industrial states, that it has become the 
settled conviction of the writer that, until women are 
universally admitted to the franchise, direct measures 
involve almost certain illusion and disappointment. 
This conviction is confirmed, not merely by the af- 
firmative experience of Colorado, but by the negative 
experience connected with the effort to establish by 
statute the right to leisure of women and children in 
199 



SOME ETHICAL GAINS 

Illinois, where women vote only for the trustees of 
the state university. It is still farther confirmed by 
the overwhelming disparity between the advantages 
gained for themselves by workingmen who are vot- 
ers, compared with the excessive difficulty involved 
in making any gain whatever, during the same period 
of twenty-years, on behalf of workingwomen and 
children. 

For years the friends of the young clerks in retail 
stores have striven to obtain for them the poor priv- 
ilege of being seated when at work, and with what 
success? In many states, laws have been enacted 
making diverse provisions for seats in stores. In 
New York City, for instance, the law has required, 
since 1896, that one seat be provided for every three 
clerks. In some stores the seats have been supplied 
for the third floor, because the clerks were chiefly 
employed upon the first. In many stores chairs are 
abundantly supplied in the fitting-rooms of the cloak, 
tailoring and dressmaking departments, for the use 
of customers, and are included in the general reckon- 
ing according to which there are, on the premises, 
chairs in the proportion of one to three clerks. In 
still other cases, chairs or seats are wholly absent 
from the notion counters and from the counters or 
tables in the aisles of the stores where half-grown 
girls serve as sales-clerks. The absence of the seats 
is suavely explained by the fact that the employees 
are there only temporarily. But their employment 
lasts day after day, and the pretext is utterly trans- 
parent. In still other places, seats are provided os- 
tentatiously, but girls who use them are censured or 



RIGHT OF WOMEN TO BALLOT 

dismissed. All these variations of the art of cvadiiifj 
the statute have been found by the writer in reputable 
establishments in New York City. 

It has been shown in another chapter that the 
power of the Retail Dealers' Association is such as 
to prevent the appointment of special mercantile in- 
spectors as provided for by the mercantile employees' 
law. That classic example illumines the whole sub- 
ject. On one side are wealth, the prestige of the 
large employers, and the efifective control of the en- 
forcement or non-enforcement of laws ; — for the 
employers not only vote, but exercise power as large 
potential contributors to campaign funds. On the 
other side are youth, ignorance, inexperience, pov- 
erty, and that irresponsibility which arises from the 
hope of marriage and resultant escape from the in- 
conveniences, great and small, which attend any 
given occupation. It may be said that the men who 
are clerks represent the interests of the women and 
girls and should be able to secure inspection of mer- 
cantile institutions and stores. But they are increas- 
ingly hampered by the pressure of competition of the 
very women and girls whom they are thus asked to 
protect. They have their hands more than full with 
their own difficulties, and cannot reasonably be asked 
by the community to fight the battles of their arbi- 
trarily disfranchised female competitors. Nor do 
competing workingmen by any means always recog- 
nize an identity of interest with the women beside 
whom they work. It is only very recently that they 
have gone so far as to welcome them to the trade 
unions. 

201 



SOME ETHICAL GAINS 

The slow and ineffectual steps towards the estab- 
Hshment of an adequate force for mercantile inspec- 
tion, in a state in which the principle of state inspec- 
tion is so long established and clearly recognized as 
in New York, are obviously due to the absence of a 
voting constituency behind the demand for such in- 
spection. 

Because, in all great industrial states, women are 
disfranchised, except for certain strictly limited 
powers in connection with educational affairs, the 
industrial disadvantages of the minor wage-earners 
are aggravated by this powerlessness of the adult 
workingwomen to make the needs of the whole class 
felt, by those methods which are slowly and grad- 
ually but surely improving the position of working- 
men ; and are no less aggravated by the equal political 
impotence of those other women who are the natural 
friends and protectors of the young workers, — the 
women of wealth, leisure, intelligence, and philan- 
thropic interest. 

It has been made sufficiently clear in the foregoing 
chapters that the exertions of the Retail Clerks' Pro- 
tective Association, the Working Women's Societies, 
the Consumers' League, and Church Association for 
Improving the Condition of Labor, and the League 
of Women Workers have availed little for changing 
industrial conditions affecting workingwomen and 
children compared with what voting workingmen 
have been able to do for themselves. 

The burden of the tale of this book is the difficulty 
of enforcing legislation on behalf of children and 
minor workers. Their position is zero minus. The 

202 



RIGHT OF WOMEN TO BALLOT 

element which, under normal conditions, is primarily 
concerned with their interests consists of the adult 
wage-earning women, the mothers and the teachers, 
with philanthropic women of education and leisure. 
So long as these either shirk the duty of securing and 
using the opportunity to vote, or are debarred from 
doing so, the difficulty of enforcement of protective 
laws must continue. 

The exceptional disadvantage attaching to the po- 
sition of minor working girls is such as to call for 
humane exertion on the part of all who can in any 
way contribute to their welfare. And the response 
is found in the rapidly growing series of philan- 
thropic undertakings of which working girls are the 
objects. While the Young Men's Christian Asso- 
ciations aim to enhance the efficiency of their bene- 
ficiaries, by furnishing instruction and facilities for 
systematic exercise, bathing and wholesome recre- 
ation, the corresponding organization dealing with 
minor working-girls provides, not only these aids to 
efficiency, but a variety of sustaining and curative 
measures in addition. What is the meaning of the 
homes for convalescent working-girls which are 
springing up in so many directions? Is it not that 
working-girls are being worn out and used up at a 
rate such that no savings of their own brief working 
period could possibly provide for their needs ? And 
these homes are without exception overcrowded (or 
burdened with waiting-lists) largely by sufferers 
from nervous prostration or pelvic disorders induced 
by long hours of work and needless standing arbi- 
trarily imposed in connection with their work. 
203 



SOME ETHICAL GAINS 

Boarding houses for working girls, furnishing board 
at four and five dollars a week and supplying a modi- 
cum of comforts paid for by philanthropic subscrib- 
ers, exist in a score of states. Why all this provision 
for which nothing corresponding is asked on behalf 
of young men ? Is it not due to the general feeling 
that the morals of working-girls must be buttressed, 
their wages eked out in the interest of society itself? 
Rescue homes and shelters tell their own chapter of 
the story of insufficient pay coupled with overwork 
and temptation ; and this chapter is supplemented by 
the rapid growth of foundling asylums, and com- 
mittees for finding places in friendly families for 
mothers w'ith one infant each. 

It may be many years before any of the efforts now 
made on behalf of working-girls can be safely re- 
laxed. But why should all this eft'ort be confined, 
in their case more than in that of young workingmen 
and boys, to the forms of philanthropy? Why 
should not effort on their behalf go forward on two 
feet, the philanthropic and the political together, as 
the movement of workingmen goes forward? Why 
should it limp haltingly along upon the one foot of 
philanthropy ? Is it not quite possible that, with the 
extension of political power to all the women in the 
community, such improvement in the conditions of 
employment must result that the minor wage-earners 
w^ill be more nearly self-supporting, less often placed 
in the humiliating position of working and yet being 
objects of charity? For any body of wage-earners 
to be disfranchised is to be placed at an intolerable 
disadvantage in all matters of legislation. 
204 



RIGHT OF WOMEN TO BALLOT 

It has been shown that in states in which women 
have been admitted to the electorate, certain substan- 
tial advantages have accrued to the schools and the 
children. It is entirely reasonable to infer that with 
a farther extension of the franchise to women, a 
similar gradual improvement in the lot of the minor 
wage-earners will come about, and that these im- 
provements cannot be achieved so promptly or so 
lastingly in any other way. 

While leisure has been increasing in the class of 
prosperous, home-keeping women, the need of their 
help, sympathy and protection has been growing 
among the young workers. Since the leisure of 
prosperous women is due largely to the labor of 
young wage-workers (who are engaged chiefly in 
the food and garment trades, the textile industries 
and that retail commerce which lives by the patron- 
age of home-keeping women), it behooves the for- 
tunate to assume their full share of the duty of mak- 
ing and enforcing laws for the protection of these 
young wage-workers. But this they can do only 
when they perform all the duties of citizenship, vot- 
ing and serving on public boards and commissions 
when elected or appointed to them. It is because 
women are less under the stress of competitive busi- 
ness, because they do, in fact, represent children and 
youth, that their vote is needed. 

One alleged form of philanthropic work in behalf 
of working girls would certainly go out of existence 
if women were added to the electorate, namely those 
so-called reformatory institutions under sectarian 
management in which for years at a stretch girls are 
^05 



SOME ETHICAL GAINS 

detained without trial, kept at work for the benefit of 
the institution or of the ecclesiastical organization 
under whose auspices it is conducted. Only the 
members of a disfranchised class can be subjected 
to treatment such as this. 

Right of Women to a Share in the Enactment 
of Marriage and Divorce Laws. — A subject of the 
highest ethical importance is kept effectively under 
discussion by the unwearied efforts of the Divorce 
Reform League to obtain the enactment by Congress 
of a uniform law dealing with marriage and divorce 
throughout the Republic. No other law touches in 
the same manner the welfare of every man, woman 
and child in the nation, as the law governing mar- 
riage and divorce. No other law, therefore, so per- 
emptorily requires the assent of every citizen. Men 
and women are alike affected by the legal basis of 
family life; and since the points of view from which 
the subject is approached by men and women are 
fundamentally different, that law alone can be an 
essentially just and righteous one which is so framed 
as to satisfy the needs of both men and women and 
to rest upon their agreement. 

For a federal law, at the present time, there is no 
machinery by which the assent of women can be 
obtained. Such a law, therefore, if enacted while 
the present suffrage restrictions remain, must be the 
product of the will of far less than half of the adults 
whom it would affect. However wise the measure 
recommended might appear in the abstract to be, the 
manner of its adoption would constitute an intoler- 
able injustice. 

206 



RIGHT OF WOMEN TO BALLOT 

It is sometimes urged by the advocates of the con- 
gressional measure that the method of securing the 
adoption of legislation by the action of the separate 
states is injuriously slow; that evils attending the 
present variety of legislation are such that haste is 
required. To this it may, however, be replied that 
the machinery of legislation in the states responds 
more quickly and sensitively to the will of the people 
than does the machinery of federal legislation. If, 
therefore, the people of the various states are slow to 
alter their laws governing marriage and divorce, 
this may arise from the fact that the existing laws 
are more or less adapted to the life of the people in 
the states. If they are not so adapted, the first pre- 
liminary change should logically be the extension of 
the electorate to include the non-voting elements of 
the population now silently aflfected by the laws. 
That being done, a just basis would have been 
formed upon which to proceed with farther changes 
in legislation in the individual states. If it be true 
that the evils arising from the existing chaos of legis- 
lation affecting marriage and divorce in the different 
states have become, or are becoming intolerable, 
surely it is fair to infer that these evils may be due 
to the enforced silence in matters of legislation of 
half the people affected by them. 

The need of haste is a strange reason to assign for 
the transfer of the power to legislate upon the most 
intimate relation of human life, from those govern- 
ments which are most easily controlled by the people 
affected, to that which is farthest removed from 
them. 

207 



SOME ETHICAL GAINS 

Four states are now in a position to deal with this 
or any other question on a basis of entire justice, 
namely those states in which men and women alike 
vote; many other states possess all the needed ma- 
chinery for submitting important measures to the 
vote of the people; and it is perfectly easy to pro- 
vide, in any given case, that women may vote on 
the question submitted. There is obviously more 
need for such submission in the case of a bill dealing 
with marriage and divorce than in the case of any 
other subject. Not until the responsibility for the 
change can be shared by the whole adult population 
should so grave a change be undertaken as the trans- 
fer of the power of legislation upon this most vital 
of all subjects from the states to the federal govern- 
ment. 



208 



CHAPTER VI 

THE RIGHTS OF PURCHASERS 

In any given community every person is directly 
or indirectly a purchaser. From birth to death 
choice is made for us or we ourselves choose ob- 
jects of purchase daily, even hourly. As we do so, 
we help to decide, however unconsciously, how our 
fellow men shall spend their time in making what 
we buy. Few persons can give much in charity; 
giving a tithe is, perhaps, beyond the usual custom. 
But. whatever our gifts may be, they are less de- 
cisive for the weal or woe of our fellow beings than 
are our habitual expenditures. For a man is largely 
what his work makes him — an artist, an artisan, a 
handicraftsman, a drudge, a sweater's victim or, 
scarcely less to be pitied, a sweater. All these and 
many more classes of workers exist to supply the 
demand that is incarnate in their friends and fellow 
citizens, acting as the purchasing public. All of 
us, all the time, are deciding what industries shall 
survive, and under what conditions. 

Obviously the purchaser ultimately decides all 
production, since any article must cease to be pro- 
duced if consumers cease to purchase it. The 
horsehair furniture of the early part of the nine- 
teenth century has now virtually ceased to be manu- 
14 209 



SOME ETHICAL GAINS 

factured. On the other hand, any article, however 
injurious to human Hfe and health the conditions of 
its production may be, or with whatsoever risk they 
may be attended, continues to be placed on the mar- 
ket so long as there is an effective demand for it; 
e. g., nitro-glycerine, phosphorous matches, and 
mine products of all kinds. 

This great purchasing public, embracing the 
whole people, which ultimately decides everything, 
does so, on the whole, blindly, and in a manner in- 
jurious to itself, and particularly to that portion of 
itself which is engaged in production and distribu- 
tion. 

" It would seem an obvious right of the purchaser 
that the food which he buys at the price asked 
should be pure and clean; that the garment pur- 
chased of an entirely reputable dealer should be free 
from poisonous dyes, vermin, and the germs of dis- 
ease ; and that both food and garments should leave 
his conscience free from participation in the employ- 
ment of young children or of sweaters' victims. 

Yet these seemingly obvious rights were, perhaps, 
never farther from attainment than to-day, in the 
opening years of the twentieth century. Adultera- 
tion of foods has never, in the history of the human 
race, been carried on upon a scale so vast as at pres- 
ent. The sweating system with its inevitable ac- 
companiment of filth and disease conveyed in the 
product, persists and increases in spite of sixty years 
of effort of the philanthropists and the needle- 
workers to check it. 

The oldest recognized legal right of the purchaser 

210 



THE RIGHTS OF PURCHASERS 

is to have his goods as they arc represented. To 
sell goods under false pretenses has long been an 
offense punishable with more or less severity, iiut 
of late this right, if it was ever widely enforceable, 
has become largely illusory. In the vast comjilica- 
tions of modern production and distribution, condi- 
tions have arisen such that the individual purchaser 
at the moment of buying, cannot possibly ascertain 
for himself whether the representation of the seller 
is accurate or not. The rule caveat emptor fails 
when the purchaser is prevented by the nature of 
the case from exercising enlightened care. Thus in 
the case of adulterated foods, or of foods exposed to 
filth or disease in the course of preparation, and in 
the case of garments sewed in tenements, the pur- 
chaser is at the mercy of the producer and the dis- 
tributer, and is debarred from exercising care in 
these respects at the moment of purchasing. 

Not only may a department store advertise with 
impunity in a dozen daily newspapers that "all our 
goods are made in our own factory," when it neither 
owns nor controls a factory, but the sales-clerks may 
safely reiterate the assurance over the counter in 
regard to an individual garment which, in truth, was 
finished in a tenement house by a bedridden con- 
sumptive. The machinery for identification is so 
imperfect, the difficulties in the way of tracing a 
garment are so many and so subtle, that the law has 
no more terrors for a mendacious sales-clerk than 
for the reckless advertising agent, or for the busi- 
ness office of those daily papers which thrive upon 
the wholesale mendacity of retail commerce. 

211 



SOME ETHICAL GAINS 

Yet the demand for opportunity to obtain gar- 
ments and food which may be purchased with a 
clear conscience grows imperative, has become, in- 
deed, an ardent and abiding desire of enhghtened 
purchasers who long for some trustworthy assur- 
ance that they are free from participation in the 
employment of children, in starvation wages and in 
the continuance of the sweating system. Granted 
that this new aspiration may be far from general, 
far from achieving its own gratification on any large 
scale, the mere fact that it is present in the minds 
of thousands of purchasers involves a new ethical 
standard on their part and must, in the course of 
time, bring fundamental changes throughout wide 
reaches of production and distribution. 

The relation of this aspiration to certain legisla- 
tion forms the subject of this and the ensuing chap- 
ter. 

Ignorance of Conditions of Production. — The 
most serious obstacle to the realizing of this aspi- 
ration is the willing ignorance of the masses, par- 
ticularly of the masses of women who constitute the 
direct purchasers of the largest portion of the arti- 
cles used for personal consumption. Even the pro- 
ducers, themselves, suffer so keenly from the lack of 
intelligence of their customers, that they are fitting 
out museums for the purpose of educating them, 
the Commercial Museum of Philadelphia being a 
promising type of such undertakings. 

Recognizing no duty in this matter, asserting no 
right, the unintelligent purchasers tempt the greed 
of producers and distributers. Devoid of enlight- 

212 



THE RIGHTS OF PURCHASERS 

ened imagination, these purchasers exert no stimu- 
lus favorable to the honest manufacturer. 

Because the germs of the deadhest diseases arc 
not discernible by the eye, because they have no 
conspicuous and offensive smell, a shopping public 
devoid of imagination remains easily unaware of 
their presence on the counters of reputable mer- 
chants. In the same way, ices and syrups colored 
in tints and shades unknown to the fruits and 
flowers of nature, arouse no imaginative wonder. 
Peas of brilliant green in January, corn taken as 
yellow from the can in JMarch as from the ear in 
July, these impossible objects are credulously ac- 
cepted by the buying multitude. Why ? Because it 
prefers not to know the truth. 

Because the purchasing public, on the whole, pre- 
fers at present not to know the facts, we are all in 
danger of eating aniline dyes in tomatoes, jams, 
jellies, candies, ices, fruit syrups, flavoring and col- 
oring extracts ; and salicylic acid in our canned peas 
and other vegetables which we insist upon having 
preserved of midsummer hue at midwinter. We 
wear more or less arsenic in our print goods and 
the germs of tuberculosis and of countless other 
diseases in our outer garments. 

A physician who visits among the poorest of the 
poor in New York City recently found a woman in 
the last stages of consumption, making, as she lay 
propped among her pillows, little boxes for wedding 
cake, licking the edges to moisten the gum to make 
it hold together. The teacher of a class of defective 
children in the same city, while visiting the home of 
213 



SOME ETHICAL GAINS 

a lad whose left arm and right hand had been ampu- 
tated by reason of cancerous growths, found the 
father suffering from tuberculosis, but making a 
trivial addition to the family income by cracking 
walnuts ( for which he was paid seven cents a pound 
if no kernels were broken and three cents a pound 
if his work was imperfect). The father complained 
that he lost much time in fetching and carrying the 
nuts and kernels between the store and his home, 
and could crack but fifteen pounds in three days. 

The individual purchaser would doubtless prefer 
to eat nuts cracked in a workroom not frequented 
by a father afflicted with tuberculosis and little son 
mutilated by the ravages of cancer. The individual 
has, however, at present no method of enforcing this 
reasonable preference. 

We are all much in the position of the Italian im- 
migrants in any of our great cities. They support at 
least one store for the sale of imported maccaroni, 
vermicelli, sausage (bologna and other sorts), olive 
oil, Chianti wine, and Italian cheese and chestnuts. 
These articles are all excessively costly, by reason 
of transportation charges and the import duties in- 
volved; but the Italians are accustomed to using 
them and prefer a less quantity of these kinds of 
food to a greater abundance of those cheaper and 
more accessible supplies by which they are sur- 
rounded. The pitiful result is that the importer 
buys the least quantity of the Italian produce requi- 
site for the purpose of admixture with American 
adulterants. The most flagrant example of this is, 
perhaps, the use of Italian olive oil, of which vir- 
214 



THE RIGHTS OF PURCHASERS 

tually none really pure is placed upon the market 
for sale at retail. What the Italian immigrant gets 
is the familar Italian label, the well-known package 
with its contents tasting more or less as it tasted at 
home in Italy. What the actual ingredients are he 
knows no more than an American knows what he is 
eating when he places his so-called butter or honey 
upon his so-called wheat-cakes. The demand of the 
Italians in America for Italian food-products, al- 
though large, persistent, and maintained at a heavy 
sacrifice on the part of the purchasers, is not an 
effective demand, because the immigrants have 
neither the knowledge nor the organization where- 
with to enforce it, while the legislation of the va- 
rious states affords them virtually no redress. 

The privilege of remaining thus unintelligent 
costs the shopping public uncounted thousands of 
lives and other uncounted thousands of invalids. 
But it is a privilege dear to modern crowds. In- 
deed, the preference for things which come from 
afar, whose industrial history cannot be known to 
the purchasers, appears to be almost universal. 
Thus the writer has seen in a filthy hovel, in the 
grimiest street in Chicago, Sicilian peasant women 
sewing into the waistbands of the cheapest little 
knee pants, tags bearing the words A^ezu York, be- 
cause the purchasers like the illusion that all gar- 
ments sold in the United States are made in New 
York. The same illusion is cherished as to numer- 
ous food products — the purchaser will have it that 
they came from some other place than their real 
source. Figs from California must be labeled 
215 



SOME ETHICAL GAINS 

Smyrna; cotton seed oil from South Carolina must 
bear French or Italian labels calling it olive oil. 

Why all these queer mendacities? Because the 
purchasing public will have it so! Because the 
number is still sadly small of those who perceive the 
duty to know their sources of supply and assert their 
right to know them ; who are willing to sacrifice that 
deadly privilege of remaining ignorant, which the 
careless majority exercise at frightful cost of dis- 
ease spread among innocent families, and of pov- 
erty, illness and death among the workers. The 
willingly ignorant purchaser carries a heavy share 
of the guilt of the exploiting manufacturer and the 
adulterating distributer.^ 

Some Typical Purchasers. — How inadequate is 
the individual demand of a single wide-awake cus- 
tomer, is well shown by the experience of a con- 
scientious shopper of the writer's acquaintance. 
Deeply moved by an eloquent appeal on behalf of 
the sweaters' victims and their sufferings, she de- 
termined to free her own conscience by buying only 
goods made in factories and workrooms, never in 
home sweat-shops. She began her search for such 
goods in the leading department store in which she 
had always fitted out her boys for school. The 

^ In England, a large body of purchasers has, for more than 
one generation, striven to attain an effective knowledge of its 
sources of supply, and to organize demand for the express 
purpose of influencing the conditions of distribution, namely 
the cooperative societies. In America, however, the coopera- 
tive movement (aside from insurance and building and loan 
societies) has gained no considerable headway in either pro- 
duction or distribution. The work of the trade unions in the 
direction of affording information and arousing an interest in 
the conditions of production will be dealt with later. 
216 



THE RIGHTS OF PURCHASERS 

sales-clcrk assured her that, "All our goods are 
made in our own factory ; we handle no sweat-shop 
goods," Being a canny person and well-instructed, 
she asked for a written assurance of that fact 
signed by a member of the firm, to be sent home 
with the goods. They were never sent, although 
this was an excellent customer whom the firm was 
in the habit of obliging if possible. This process 
she repeated in several stores and outfitting estab- 
lishments, until it became clear to her mind that, 
alone and unaided, she could never free her indi- 
vidual conscience. The loneliness of this enlight- 
ened purchaser is one of the instructive phenomena 
of our times. The great, careless, thoughtless 
mass of American men and women have performed 
the act attributed to the ostrich. Hiding their 
minds in the pleasanter oblivion, they have pre- 
tended that the enemy was not present. 

During the long period in which there had not 
yet been discovered a practicable method of dealing 
with the sweating system, many otherwise intelligent 
people deliberately adopted a policy of ignoring 
conditions which they saw no way of improving. 
Thus it was once the fortune of the writer to address 
a club of unusually influential women, on the con- 
ditions of work in the needle-trades in Chicago, as 
they existed during the smallpox epidemic of 1894. 
The story was a painful one of a disorganized trade, 
pauperism of skilled workers, destruction of home 
life in the tenements, incompetence in the Board of 
Health, filth, disease and death. The members 
listened with visible impatience. In the course of 
217 



SOME ETHICAL GAINS 

the discussion which followed one member said: 
"This club exists for the purpose of education and 
recreation. Listening to the recital this afternoon 
certainly cannot be regarded as recreation. Unless 
the speaker can offer a method by which we may 
participate in some practical effort for the improve- 
ment of conditions in the needle-trades, our way of 
spending this afternoon can have no claim to be re- 
garded as education. For my part, I find it satis- 
factory to buy garments wherever I find them at- 
tractive, and then send them to the steam-cleaner." 

Manifestly this individualistic solution of the 
problem of the needle-trades was insufficient, even 
from the point of view of the speaker, for any ordi- 
nary cleaning of those days would certainly not 
have reached the germs of smallpox or of scarlet 
fever ; and few persons share the willingness of that 
speaker to buy goods trusting to the efficacy of 
subsequent disinfection. Since, however, there was 
at that time no method available which could be 
offered to the critic, the writer was left defenseless. 
The community has borne both the risk of infec- 
tion and the guilt of participation in maintaining the 
sweating system with sadly complete equanimity, 
far more amiably, indeed, than it has endured the 
painful process of enlightenment. 

Among all the cherished forms of ignorance, none 
is more tenacious than that of the prosperous pur- 
chaser able and willing to pay for the best that the 
market affords and convinced that, whatever the 
sorrows of purchasers of ready-to-wear goods, he 
is safe, because he gets his garments only of the 
218 



THE RIGHTS OF PURCHASERS 

merchant tailor and pays a liip^h price for the as- 
surance that they are made up under conditions 
which guard him against disease, and enable the 
merchant tailor to pay the working tailor a fair 
price for his labor. But this customer is really no 
better off than the well-instructed club woman mak- 
ing her ineffectual search for righteously made 
ready-to-wear goods for her boys. For example, as 
factory inspector of Illinois, the writer was one day 
in search of a cigarmaker who was said to have 
smallpox in his family, during the terrible epidemic 
of 1894. Quite by accident a tailor was discovered 
newly moved into the suspected house, and not yet 
registered with the department or with the local 
board of health. In this tailor's shop, which was 
his dwelling, there was a case of smallpox. In the 
same shop there was, also, a very good overcoat, 
such as gentlemen were paying from sixty to sev- 
enty dollars for in that year. In the collar was a 
hang-up strap bearing the name of a merchant 
tailor in Helena, Montana. Now, that merchant 
tailor had had, in his store window in Helena, ex- 
cellent samples of cloth from which the customer 
had ordered his coat. The Helena tailor had taken 
the necessary measurements and had telegraphed 
them, together with the sample-number of the cloth, 
to the wholesale house in Chicago, of which he was 
an agent. The wholesaler had had the coat cut and 
had sent it to the kitchen-tailor in whose sickroom 
in an infected house in Chicago it was fortunately 
discovered. But for the happy accident of the find- 
ing of the tailor during a search for an entirely 
2ig 



SOME ETHICAL GAINS 

different person, the purchaser in Helena, Mon- 
tana, would surely have bought smallpox germs in 
his expensive coat. 

Beside this fatuous belief that his custom-work, 
because it is costly, is made under clean and whole- 
some conditions, the purchaser of expensive gar- 
ments usually comforts his conscience with the as- 
sumption that the working tailor who makes them 
receives some substantial share of the high price in 
the form of wages. While it is true that the tailors 
who do custom work have a more stable trade union 
than workingmen in the ready-to-wear branches, 
and command, therefore, somewhat better pay, it is 
also true that the tailor in this case, as in scores of 
others during the same epidemic, was driven by ex- 
treme poverty to conceal the dreadful fact that he 
had smallpox in his family, through fear of losing a 
few days' or a few weeks' work. So the high price 
of the coat did not even entitle the customer in 
Helena, Montana, to an easy conscience on the score 
of the wages paid to the people who worked upon it. 

In the matter of wages, however, there is no 
longer an available excuse for ignorance on the 
part of the purchaser as to the wages paid for the 
manufacture of his garments; and to-day, he who 
remains ignorant upon this important point does so 
by his own choice. For the tailors were already, at 
that time, offering a label attached to goods made 
under conditions of pay and of hours of work satis- 
factory to both the employer and the worker. 

Efforts to Enlighten Purchasers. — Clearly the 
first step towards the assertion of the rights of the 

220 



THE RIGHTS OF PURCHASERS 

purchaser is the acquisition of knowledge ; and it is 
an idiosyncrasy of the present industrial situation 
that a large part of the effort exerted for the en- 
lightenment of purchasers has come, not from them- 
selves, but from manufacturers, physicians and 
philanthropists (in the form of restrictions upon the 
sale of drugs, or recommendations in favor of mu- 
nicipally prepared vaccine, anti-toxine, etc.), from 
public authorities in the shape of official reports, 
from the Consumers' League in its endeavor to 
form a large and stable body of organized purchas- 
ers, and finally and chiefly from the trade unions, 
disseminating information in the interest of better 
working conditions for themselves. 

Among all these agencies, the press and the ad- 
vertising merchants might be expected to appear. 
These have, however, little claim to any educational 
quality in their endeavor. Their exertions have 
been directed distinctly not toward education. 
Rather they have been meant to stimulate, to per- 
suade, incite, entice, and induce the indifferent to 
purchase. Much of the current advertising, of 
which the patent medicine advertisement may be 
taken as the type, is aimed directly at the ignorance 
of the purchaser. Nearly all of it is aimed at the 
cupidity of the public and it, therefore, offers cheap- 
ness as the one great characteristic. It is immoral 
rather than ethical. 

Such measures as exist for the inspection and 
testing of food products have usually been obtained 
either by hygienists and physicians for philanthropic 
purposes, or by producers who were furthering 

221 



SOME ETHICAL GAINS 

their own interests while nominally promoting those 
of the purchaser. Such is the requirement that 
oleomargarine shall be colored pink when offered 
for sale in certain states, nominally for the protec- 
tion of consumers, who may not care whether the 
substance which they use for frying or for spread- 
ing on bread is made of the milk of the cow or the 
fat of the steer. The people who obtained the en- 
actment of this law were not the outraged consum- 
ers of oleomargarine, demanding to be protected 
against it, but the farmers whose butter market was 
threatened by the invasion of the oleomargarine. 

Similar protection to American purchasers of 
foreign food products is afforded by the federal 
bureau with its laboratories for the investigation of 
imported articles, nominally in the interest of the 
public health, but really in the interest of the Ameri- 
can producer, whose adulterations are left by the 
federal government to the varying efificiency and 
honesty of local boards of health, and state chemists, 
and food and dairy commissions. 

In consequence of these diverse and multifarious 
exertions on behalf of the purchasers, there have 
grown up regulations of strangely unequal effective- 
ness. Thus in many cities the sale of a small num- 
ber of well-known deadly drugs is hedged about 
with precautions intended to prevent murder and 
suicide by the ancient method of poisoning. In 
some cases, the purchaser of such drugs must be 
identified, and must state the purpose for which the 
purchase is made. Arsenic and strychnine, having 
an old established reputation as possible enemies of 



THE RIGHTS OF T U R C H A S K R S 

human life, and but slight profit for the retailer in 
the quantities in which they arc sold to individual 
purchasers, are surrounded by precautions ; and the 
package may even have to be conspicuously labeled 
with skull and crossbones, so that no carclesr, third 
party can unintentionally come to harm. 

Meanwhile the milk sold by the grocer next door 
to the druggist may be conveying typhoid germs 
in every bottle, and his cream may be so thickened 
with corn-starch and other substances as to starve 
any baby depending upon it; or serve as a gradual 
poison to a diabetic patient conscientiously endeav- 
oring to follow his prescribed diet of fats and to 
avoid starch in all its forms. The products of the 
dairy have an excellent reputation as bases of 
wholesome feeding for infants and invalids ; the 
purchaser is not habitually on guard against them, 
as he is forewarned against the corner druggist's 
arsenic and strychnia, nor has he any available 
means of personal self-defense. The typhoid germ 
and the thickening substance added to his cream 
and milk he cannot discover for himself at will. He 
must take his chances of protection through the 
intelligence and faithfulness of the municipal 
officials who deal with the milk supply. The con- 
stant appalling death rate of infants who depend 
upon milk, in all great cities, demonstrates the in- 
sufficiency of this agency, under present conditions. 

Only the intelligent farmer, managing his own 
dairy, or the cooperative society owning its dairies 
and buying its own product, can be certain of avoid- 
ing poisons, quite as dangerous to life and health as 
223 



SOME ETHICAL GAINS 

strychnia and arsenic, with which American society 
has not yet learned to deal by any effective summary 
procedure. The experience of some of the English 
cities, and of Rochester, New York, seems to indi- 
cate that the difficulties of the milk supply can be 
met only by the institution of municipal milk, analo- 
gous to the municipal water supply; and municipal 
provision of all useful drugs, analogous to the 
present municipal supplies of vaccine and anti- 
toxine serum. 

On the other side from the dairyman, the drug- 
gist's next door neighbor, perhaps, is a tailor, who 
may be actively engaged in poisoning society in yet 
a different manner, by the sale of garments made 
in places in which there is infectious disease trans- 
missible in articles exposed to it. In this case, also, 
as in the case of the dairyman's milk, the customer 
is at the mercy of the community and its officials. 
For when he orders a suit, it is out of his power to 
sit in the tailor's shop while the garment is cut, and 
then follow it whithersoever the merchant tailor 
may send it, first to a workshop to be stitched, after- 
ward to a second place in which the buttonholes 
may be made, and then to a third place, commonly 
a tenement-dwelling, in which the vest and trousers 
are felled and otherwise completed before the gar- 
ment is sent back to the tailor for the removal of 
whatever grease and vermin it may have acquired 
in its travels. For the tailor, as for the dairyman, 
there has never yet been brought to bear any pre- 
cautionary measure adequately protective for the 
customer. 

224 



THE RIGHTS OF PURCHASERS 

Scarcely more availing than the restrictions upon 
strychnia and arsenic in the wilderness of modern 
retail trade, are the efforts of the public officials to 
protect the purchasing public by the dissemination 
of information. The Department of Labor at 
Washington, the state bureaus of labor, the state 
inspectors of factories, the municipal and state 
boards of health, the state chemists and dairy com- 
missions, all publish annually or biennially (some of 
them quarterly, monthly, and weekly) information 
for the enlightenment of the citizens. But very 
little of this information has, hitherto, served the 
purpose of the individual purchaser. If I have read 
the reports of all these officers, I am not only in as 
great danger as before of buying glucose for sugar, 
acetic acid for vinegar, and paper in the soles of my 
shoes ; but I am in as great danger as before of buy- 
ing smallpox, measles, scarlet fever, infectious sore 
eyes and a dozen forms of disease of the skin in my 
new garments. For not one of these officials pub- 
lishes the list of the kitchen-tailors to whom the 
merchant tailor gives his goods to be made up ; just 
as not one of them can possibly give information 
whereby adulterations of foods can be successfully 
detected m the private kitchen. 

On the other hand, the available official informa- 
tion already existing has hitherto remained largely 
ineffectual. In vain has the fact been printed that 
a certain bouillon (so extensively advertised as par- 
ticularly delicate and suitable for the use of aged 
persons and little children) is boiled in such close 
proximity to the fertilizer storage of the packing 
15 225 



SOME ETHICAL GAINS 

establishment that the factory inspectors fall ill on 
the days of inspection of these premises. The 
bouillon continues to be served at the luncheons of 
the socially aspiring. Official statements on all 
these matters, safely buried in official reports, do not 
reach and influence the great mass of the buyers. 

For m.any generations manufacturers have been 
offering to their patrons the guarantee of the brand, 
whereby the producer stakes his reputation upon the 
excellence of the article bearing his name or device. 
But the public attaches such slight importance to 
this guarantee that, at present, many factories send 
out more goods without the brand than with it, not 
wishing to shoulder the discredit incident to their 
cheapest and most worthless product, which yet 
proves the more profitable portion of the total out- 
put. 

The difficulties of the manufacturers in their 
efforts to enlighten purchasers are greatly intensi- 
fied by the extraordinary incompetence of the 
"average" purchaser to judge articles on their 
merits. For certain great modern industries men 
have devised tests for the product, and warships, lo- 
comotives, railway bridges, and electrical installa- 
tions can all be tried and tested before the bills are 
paid. But for the bulk of the products intended for 
personal use, nothing effective has been designed 
corresponding to these tests. Especially is this true 
of all those branches of manufacture which were 
once carried on by women in the home, and have 
now gone out into shops and factories. Concern- 
ing these products, purchasers must still rely upon 
226 



THE RIGHTS OF PURCHASERS 

their individual skill as buyers. The old rule 
caveat emptor is here carried out to its utmost ap- 
plication. 

The most promising step forward in the effort to 
educate the purchasing public has been taken when- 
ever a state has required the manufacturer of an 
article of food or medicine to state clearly and 
truthfully the ingredients composing each package 
offered for sale. This is a direct appeal to the in- 
telligence of the purchasing public. Such meas- 
ures become effective just in proportion as the pur- 
chasers cooperate with the officials who are charged 
with the duty of testing and analyzing samples 
bought in the ordinary course of trade. A com- 
munity in which this cooperation is well sustained 
protects the life and health of its citizens, stimu- 
lates their intelligence in a direction of ever-increas- 
ing industrial importance, and enforces honesty 
upon producers who are under the heaviest moral 
strain when left unsustained under the pressure of 
competition. 

The same principle underlies a bill entitled "An 
Act for Preventing the Adulteration or ]\Iisbrand- 
ing of Foods or Drugs, and for Regulating Traffic 
Therein," which has twice passed the House of 
Representatives only to fail each time of passage by 
the Senate. This is the attempted application of the 
principle that the purchaser is of right entitled to 
trustworthy information furnished by the producer 
and guaranteed by the ceaseless activity of officials 
created for the purpose of examining the products 
227 



SOME ETHICAL GAINS 

and testing the veracity of the labels attached to 
them. 

By providing for a continuous appeal to the in- 
telligence of the individual purchaser, and an ever 
present warning to the producer to tell the truth as 
to his product, this bill^ promises an important 
ethical gain through legislation. 

^ For the text of this bill see Appendix V. 



CHAPTER VII 

THE RIGHTS OF PURCHASERS, AND THE 
COURTS 

The more closely the rights of purchasers are 
scrutinized, the more clearly it appears that they 
are social rights. However much they may present 
themselves to the mind as individual, personal 
rights, the effort to assert them invariably brings 
the experience that they are inextricably interwoven 
with the rights of innumerable other people. In the 
last analysis they cannot be asserted without the 
previous assertion of the claim of the weakest and 
most defenseless persons in the community. 

It has been suggested in a previous chapter that 
the most obvious rights of the purchaser are, to 
have his goods as they are represented, and to have 
food pure and garments free from poison and in- 
fection when bought of reputable dealers at the 
price asked ; and, finally and most important, to be 
free from participating indirectly, through the pur- 
chase of his goods, in the employment of children 
and of the victims of the sweating system. 

Before, however, these fundamental rights of any 

purchaser can be established as a matter of course, 

it occurs incidentally that the lives of infants must 

be safe from the poison of unclean milk and adul- 

229 



SOME ETHICAL GAINS 

terated foods, and the consciences of the wage-earn- 
ers cleansed of the degradation implied in prepar- 
ing impure foods for the market. In the process, 
honesty must be forced upon the poisoners (by 
means of adulterations in food and germs in ap- 
parel) who now thrive upon the ignorance and 
credulity of the buying public. 

Before the individual purchaser can vindicate his 
own personal rights, the whole body of purchasers 
are constrained to save childhood for the children, 
and home life for the workers who dwell in tene- 
ments. The garret of the humblest widow must be 
safe from invasion by the materials and the proces- 
ses of industry. The childhood of the dullest or- 
phan must be secure from the burden of toil. On 
no easier terms can the conscience of the citizen as 
purchaser be freed from participation in the mean- 
est forms of cruelty, the sacrifice of the weak and 
the defenseless to the search for cheapness. 

These ends can be accomplished, however, only 
by comprehensive statutes sustained by decisions of 
the highest courts, and enforced by endless effort of 
the purchasers and the wage-earners defending their 
interests together. Under the pressure of competi- 
tion, the highest ethical level possible to our social 
life can be reached only through legislation in this, 
its highest and finest sense. 

The New York Decision of 1884; (In re 
Jacobs). — These truths find an illustration in the 
history of a disastrously unsuccessful effort of the 
cigarmakers to protect by statute their own ex- 
clusive interests, through the enactment of a meas- 
230 



PURCHASERS AND COURTS 

ure prohibiting the manufacture of cigars and the 
manipulation of tobacco in tenement houses in the 
state of New York. In 1884, when tliis efTort was 
made, tenement-manufacture was of relatively 
slight extent compared with its subsequent develop- 
ment, and was confined almost exclusively to the 
materials mentioned. The sweating system, as we 
know it, was then in its earliest infancy, and the 
manufacture of garments and other articles under it 
was so slight as not even to suggest to the cigar- 
makers the inclusion of the needle-trade workers in 
the struggle for the statutory prohibition of work 
in the ten ements . 

When the law prohibiting; the manufacture of 
cigars and the manipulation of tobacco in the tene- 
ments had been in force less than a year it was pro- 
nounced unconstitutional by the Court of Appeals, 
in the decision of the case of in re Jacobs.^ 

Had that earliest statute been sustained by the 
Court of Appeals of New York it is safe to assert 
that the odious system of tenement manufacture 
would long ago have perished in every trade in 
every city in the Republic. 

Because it was undeniably class legislation, ap- 
plying only to those tenement-dwellers who were 
employed in producing the commodities including 
in some form tobacco as an ingredient, and omitting 
all others, it is impossible to defend the statute. 
But the deplorable results of the decision of the 
Court of Appeals, which its defective form called 
forth, are of such far-reaching ethical, industrial 

1 See Appendix IV. 

231 



SOME ETHICAL GAINS 

and social character as to deserve careful consider- 
ation. 

The framers of the law described it in its title 
as "An Act to Improve the Public Health," by pro- 
hibiting certain narrow lines of manufacture in the 
tenements. But the court held that its title did not 
properly describe it, — that it was not, in fact, a 
measure calculated to improve the public health. 

On this last point the court was clearly in error as 
to the facts. The proof of the pudding is in the 
eating; and, since the annulment of the prohibition, 
tenement-house manufacture has developed enor- 
mously, has produced disease unceasingly by over- 
crowding not merely individual tenements, but 
whole districts of every city in which it has existed, 
and has distributed disease in the communities into 
which the manufactured goods have carried germs 
emanating from infected tenements. 

Physicians, nurses, inspectors of numerous kinds, 
friendly visitors of divers charities, residents of set- 
tlements in districts in which the sweated industries 
are carried on, all testify to the impossibility of pre- 
venting the spread of disease in the general public 
where this system of manufacture continues. In 
1885, however, this was not yet the case. The 
germ theory was not yet so thoroughly a part of the 
public consciousness as it has since become. Nor 
was the present body of evidence as to the close con- 
nection of the diseases of the tenement-dwellers 
with epidemics in remote parts of the country, 
whose inhabitants wear tenement-made garments, 
then available. 

232 



PURCHASERS AND COURTS 

A Startling proposition contained in the decision 
in re Jacobs is that the health of the employees is 
not the public health! "What possible relation can 
cigarmaking in any building have to the health of 
the general public?" asked the Court of Appeals of 
New York in 1885. 

It is not long since a visiting nurse among the 
tenements of New York City found a dying con- 
sumptive licking the tips of cigarettes which he 
was manufacturing. This is but one of thousands 
of observations which have been made and recorded 
since the decision in re Jacobs embodied that cyni- 
cal question. During the intervening twenty years 
the fact has been imprinted upon the public mind 
that the whole system of manufacture in the tene- 
ments does involve a degree of danger to the public 
health such that it is no longer to be tolerated ; that 
this danger is not confined to the employees in the 
tenements themselves, but that it is shared by them 
wath the whole purchasing public. 

It is not now needful to prove that the health of 
the workers is an important part of the health of the 
public. Every epidemic during the years since 
1885 has proved that the disease of the workers in 
the tenements becomes, with certainty and precision, 
the disease of the public, transmitted in the textures 
of the goods worked upon in the sickrooms of the 
invalids of the tenements. 

A comparison of the text of this New York 

decision of 1885 with the decisions of the Supreme 

Court of the United States in the cases of Ilolden 

vs. Hardy in 1898, and of Lochner vs. New York in 

233 



SOME ETHICAL GAINS 

1905, shows the vast transition which has taken 
place in the space of twenty years in the judicial 
view of the piibHc health. 

Says the court in the decision in re Jacobs : ''To 
justify this law, it would not be sufficient that the 
use of tobacco may be injurious to some persons, or 
that its manipulation may be injurious to those who 
are engaged in its preparation and manufacture; 
but it would have to be injurious to the public 
health." 

In the later cases, cited in previous chapters, it 
has been shown that the whole contention of the 
United States Supreme Court is that the industry 
must be injurious to the persons engaged in it, in 
order that their freedom of contract in relation to it 
may be restricted by statute. 

Because it was class legislation, by reason of con- 
fining its prohibition to workers in tobacco, and be- 
cause it was not, in the opinion of the Court of Ap- 
peals, sufficiently obviously a measure for the im- 
provement of the public health, the court pro- 
nounced the law prohibiting the manufacture of 
tobacco in tenements unconstitutional and void, al- 
leging that it deprived the cigarmakers of "some 
portion of their personal liberty." 

But, in sustaining his "right to live in his own 
house, or to work at any lawful trade therein," — a 
right of which the tenement-dwellers had labori- 
ously striven to be rid, in order to gain instead 
thereof the opportunity of working in factories and 
workshops furnished by the manufacturer, — the 
court, in fact, established the "right" of manufac- 
234 



PURCHASERS AND COURTS 

turcrs to turn the kitchens and bedrooms of the 
poorest of the poor into workrooms and storage 
places, a "right" of which the most ample use has 
for twenty years been made by the manufacturers. 

While thus inadvertently defending the undesired 
"right" of the tenement-dwellers to sutler the inva- 
sion of manufacture into the innermost recesses of 
the family life, the court inadvertently deprived the 
purchasing public of the power of tracing the 
processes of manufacture which are carried on, in 
name at least, for its sake. It thus deprived the 
purchaser, in efifect, of the power to exercise the 
right to knowledge of his sources of supply. 

Moreover, by the decision, the right of the work- 
ingman who lives in a tenement house to enjoy his 
home, using it for the purposes for which a home is 
established and free from the intrusion of his daily 
bread-winning employment, was inferentially shown 
to be, like his right to leisure, one which must be 
achieved by the method of trade organization. 

The Development and Regulation of the 
Sweating System. — This inference the tenement- 
house workers drew without loss of time. They 
abandoned all effort to secure sweeping prohibitions, 
and have since that time striven to deal with their 
problem by the twofold method of regulation by 
statute and regulation by public opinion. Sweeping 
prohibition being unattainable, the next step was 
towards partial prohibition. Work upon certain 
specified articles in kitchens and bedrooms was pro- 
hibited to all persons not members of the family. 
Although a man could not be shielded from the in- 
235 



SOME ETHICAL GAINS 

vasion of his dwelling by the materials of his indus- 
try, he could at least be spared the presence of 
strange men and women. An immediate conse- 
quence of this was the establishment of workshops 
in the rear of the tenements, sometimes with steam 
power, sometimes with foot power ; but always with 
the custom of sending the handwork into the dwell- 
ings. The list of articles thus kept sacred to the 
family, short at first, grew from year to year, and 
now includes thirty-four items. Baking bread and 
cakes, cracking nuts for candy manufacturers, 
candying fruit for sale to school children, stringing 
beads for passementeries, pickling cucumbers, and 
drying maccaroni are a few of the items not yet 
embraced in the list. 

By adopting these partial prohibitions, while de- 
nying to the purchasers and the workers the protec- 
tion of a complete prohibition of all manufacture in 
the tenements, the state has instilled into the minds 
of its industrially weaker citizens a sense of con- 
fusion mixed with contempt for the law. For, 
where a sweeping prohibition would have been log- 
ical and relatively easy to enforce, the petty, teasing 
restrictions enacted piecemeal have been fruitful of 
the spirit of evasion. When it was a misdemeanor 
for a man's sister to sew a cloak in his dwelling, 
but perfectly legal for his wife to sew it, while his 
sister could legally sew an apron or a skirt for the 
same employer, the one impression conveyed to the 
mind of the newly arrived immigrant was that this 
law was not intended to be obeyed. And it never 
has been obeyed ; nor is there any prospect, even in 

21^ 



PURCHASERS AND COURTS 

its present amended form, that it will be uniformly 
obeyed. For it is clearly non-cnfurccablo. 

In the vain effort to enforce partial restrictions 
which are in the nature of the case non-enforceable, 
a provision was enacted in 1899 requiring a license 
from the factory inspector for every person or 
group of persons who worked at any process of 
manufacture of some thirty articles, in any tene- 
ment house or in a building in the rear of one. 
After this provision had been in force for five years 
the writer one day, in 1904, observed a woman 
walking along Mulberry street, New York, carrying 
a huge bundle of knee pants on her head. The 
burden bearer mounted to the fifth floor of an 
Italian tenement and threw her bundle down upon a 
singularly greasy kitchen table. Asked to show her 
license to work, she brought out, with the friendly 
smile and courteous manner of the Sicilian peasant 
woman, a letter from the New York State Depart- 
ment of Labor, dated some seven weeks before, 
notifying her that her premises were unfit for 
licensing, and that no more work must be done in 
them until they had been thoroughly cleansed, re- 
inspected and licensed ! The cheerful needle-wom- 
an, unable to read in any language, but reassured 
by the seal of the state of New York on the en- 
velope, had assumed that this was the license for 
which she had been told to apply, and had worked 
away happy in the consciousness of having obeyed 
the law. 

The only gain to any part of the community de- 
rived from the licensing law during the five years in 
237 



SOME ETHICAL GAINS 

which it retained its original form, was the discov- 
ery of the places in which manufacture was carried 
on. More than thirty thousand licenses were issued, 
and the ugly fact was brought to light that there 
were more licensed groups of tenement-workers in 
the four most undesirable streets of New York City, 
Mott, Mulberry, Elizabeth and Chrystie streets, 
than in any other streets. 

Since the promulgation of the decision in re 
Jacobs, in 1885, the state and the trade unions have 
alike been burdened with the despairing duty of per- 
forming the impossible. It is utterly impossible to 
keep the system of manufacture in the tenements, 
and to avoid its evil consequences. 

Tenement work means the underpaid husband 
letting his wife earn the rent with her needle, in- 
stead of insisting, as it is clearly his duty to do, upon 
wages enough to maintain his family. It means 
boys and girls of ten years kept at home from 
school, in violation of the compulsory education law, 
to do the housework and take care of the younger 
children while the mother sews for the market. 

Tenement work means the use of foot power in 
competition with steam power, a ruinous strain upon 
the health of every man, woman and child subjected 
to it. Tenement work means an endless working 
day in the tenement at the foot power machine in 
the "rush" season, followed by the shutting down of 
the factory for want of orders. 

Tenement work means steady downward pressure 
upon the wages of the factory workers, to whom it 
can always be said : "If you do not like our terms 
238 



PURCHASERS AND COURTS 

in the factor}-, wc can send the work into the 
homes." Tenement work means tlie unavoidahle 
spreathng- of disease and the frequent hreakinj^ out 
of epidemics, not only in the cities where it is carried 
on, but in all those distant places to which the 
product may be sent. 

In the effort to minimize the inevitable conse- 
quences of homework, the state has subjected the 
dwellers in the tenements to threefold inspection, in 
addition to the oversight of the federal government, 
whose tax collectors were already charged with the 
duty of following them up for the purpose of gath- 
ering the tax upon tobacco. 

Because the personal liberty of a workingman 
would be interfered with, if his employer were pro- 
hibited from requiring him to work at home, the 
unhappy dwellers in the tenements have seen their 
homes invaded by all manner of materials, from to- 
bacco leaves and stems, to the bales of paper and 
tubs of paste required for making paper bags, and 
by three sets of inspectors, — of the Board of Health, 
of the Tenement House Department, and of the 
Bureau of Factory Inspection. 

IMoreover, in the alleged interest of their "per- 
sonal liberty" these victims of the sweating manu- 
facturers have been constrained to live within 
walking distance of their employer's place of busi- 
ness, for the burden-bearer between the merchant 
tailor and his home-worker is usually a woman or a 
child, reduced by the smallness of the pay to saving 
car-fare by living near the "shop." Instead of able- 
bodied men and girls of the family, walking empty 
239 



SOME ETHICAL GAINS 

handed to and from their work, or riding perhaps 
to a desirable suburb by trolley, the burden-bearing 
woman or child has determined the distance to be 
traversed. Thus the tenement house problem has 
been artificially intensified and complicated ; and by 
reason of the unlimited competition of the women of 
the tenements, wages have been kept at such a level 
that neither time nor car-fare can be spared by an 
adult for fetching and carrying. Hence some child 
is sacrificed by being kept from school to serve as 
beast of burden, whenever the goods are such as can 
safely be trusted to a child. 

Moreover, all this sacrifice of the family leaves 
the task of the officials a hopeless one. No Board 
of Health has ever succeeded in knowing, every day 
in the year, where all the goods are concealed in the 
tenements, nor where all the children are who may 
be coming down with diphtheria, or shedding rags 
and patches of their skin after light cases of scarlet 
fever. 

Trade Unions and the Union Label. — The de- 
cision of the Court of Appeals in re Jacobs vir- 
tually turned over to the wage-earners the task of 
providing, through the machinery of their organiza- 
tions, for the protection of themselves and the pur- 
chasers against the evils of the sweating system. 
For twenty years the unions have faithfully striven 
to perform a task which it was, from the beginning, 
impossible that they should achieve. Just as they 
long before introduced- child-labor legislation and 
factory inspection, which have come to be recog- 
nized as benefactions to the whole people; so they 
240 



PURCHASERS AND COURTS 

now invented that method of deahng with the 
sweated trades, by offering the label as a guaranty 
of conditions approved by the workers which is ac- 
cepted as the best available under the circumstances, 
and in view of the conditions imposed by the deci- 
sion of the Court of Appeals in re Jacobs. It is, 
of course, out of their power ever to do, with pallia- 
tives, what a sweeping prohibition could have done 
long since. 

The public , howeveTj cannot afford to allow the 
courts to relegate to -th£..iabor- .organizations the 
duty of_protecting the public health against the 
recklessjvillingness of manufacturers to take risks. 
For, if the union is not strong enough to dominate 
the trade (and no union of garment workers has 
ever been strong enough to do this), the public 
must take tlie consequences in disease and death 



sent out from the teneineii^sewing rooms. Or, if 
a union we re not only insuffici ently strong but im- 
perfectly honest as well, the public would pay the 
penalty fojL.£^er3Mat)el^ishonestly sold to contract- 
ors for use in. places which fell below the accepted 
standard of wholesome and clean conditions. 

Or, tet ursuppose~that~ a portion of the public 
may be honestly opposed on principle to the main- 
tenance of trade unions; and unwilling, therefore, 
to purchase goods guaranteed by the union label. 
Such abstainers, if left without other means of dis- 
crimination in favor of goods made under whole- 
some conditions, are in danger, not only of incur- 
ring disease and death, but of disseminating them 
throughout the community. 
i6 241 



SOME ETHICAL GAINS 

Finally, a large__gart of the membership of the 
imions in the garment trades consists of immi- 
grants so recently arrived from Eastern Europe as 
to ha-ve no adequate standards of wholesome condi- 
tions for home and workshop, of persons wholly un- 
prepared to defend^tlieir own_health, much more 
that of the general, public. X^lgarly the ^nions,>\ 
[however valuable to their members aiiH to the com- 
munity in other relations, c^not, in the nature pi 
Ithings, be a sufficient guardian_oj the, health and: 
Wfety of all the purchasing public. 

While, however, the unions have not achieved 
the impossible, and have not succeeded in perform- 
ing a task of protection of the public health which 
should never have been asked of any voluntary or- 
ganization, they have been vastly strengthened by 
the effort to do this. Baffled in the endeavor to do 
away with tenement work by law, they turned to the 
development of their label, advertising it, obtaining 
legal guarantees against infringement, and publish- 
ing all the abhorrent facts connected with the sweat- 
ing system and attached, inferentially, to the goods 
which bore no label. Their label, whether or not 
it has always guaranteed satisfactory cleanliness and 
the absence of disease from the workroom, has an- 
nounced to the world that the conditions as to hours 
and wages (the organization of employees being 
understood, of course), in the factories in which it 
was used, were satisfactory to the workers in those 
factories. This recommendation has gradually 
come to possess a value such that in some indus- 
tries the manufacturers pay for the label a price 
242 



PURCHASERS AND COURTS 

which covers the cost of advertising on a large 
scale. 

Since goods bearing the trade union label com- 
monly cost somewhat more than other goods, the 
workingmen who take the trouble to pay the price 
required are stimulated to look sharply after the 
integrity of the union which offers a label. 

What, now, is the position of that portion of the 
public which disapproves of the union and repudi- 
ates its guarantee and its label? Except within the 
narrow limits of the Consumers' League, with its 
label on women's and children's white stitched 
underwear, such purchasers have no guarantee 
whatever. Moreover, only a small fraction of the 
innumerable industries involved in the preparation 
of apparel is included among the organizations of 
labor. While labels may be found in many cities 
by seekers after men's hats and shoes, outer-wear, 
neckties, gloves, shirts, etc., none is discernible for 
woven underwear, on which much handwork is 
regularly done in homes ; while for women the union 
label is scarcely upon the market outside of the shoe 
trade. 

In the manufacture of garments and apparel of 
all kinds for women, the workers are chiefly young 
girls and women who have, hitherto, formed no 
stable union ; who have no funds for advertising on 
a large scale, and no real power of enforcing any 
provisions for their own protection or that of the 
public, which has for twenty years left to them this 
impossible task. 

A community which turns over to the working- 

243 



SOME ETHICAL GAINS 

women the task of assuring to it clean and whole- 
some workrooms in the tenements, for the produc- 
tion of its wearing apparel, gets exactly what it de- 
serves, — the sweating system upon the largest scale 
that the world has ever seen. 

After the state of New York shall have arrived at 
some method of doing away with tenement manu- 
facture and sweating, after these twin iniquities 
shall have been effectually abolished, the trade 
unions will resume their normal function of guaran- 
teeing to purchasers who ask for it, the fact that the 
hours of labor and the wages are satisfactory to the 
workers in the factory from which the label issues. 
It is preposterous ever to have asked of them, even 
inferentially, more than this. They have had im- 
posed upon them by the indirect working of the 
decision of the Court of Appeals in re Jacobs, a 
task which it was clearly the duty of the state to 
perform ; and it is in no wise to their discredit that 
they have failed to do the impossible. That dis- 
credit attaches to the community which imposed this 
unwarranted and unwarrantable burden. 

Thus we have, after twenty years of effort, two 
ineffectual methods of dealing with tenement manu- 
facture, pursued side by side. The state, by statute, 
legalizes the manufacture in the tenements of 
thirty-four articles, and proceeds by a cumbersome 
threefold inspection (by the State Factory Inspect- 
ors, the Board of Health Inspectors and the Tene- 
ment House Department), to minimize the danger 
to the public health, including that of the workers 
themselves. But, as has been pointed out, the pub- 
244 



PURCHASERS AND COURTS 

lie health is not really safeguarded. The people are 
merely lulled into a false sense of security. 

The unions, meanwhile, have spent untold thou- 
sands of dollars in their effort to induce the pur- 
chasing public to avoid the dangers attending 
sweated goods, by the individual method of discrim- 
ination against tenement made products and in 
favor of goods guaranteed by the union label. 

Ethical Loss Through Lack of Legislation. — 
The ethical loss by reason of this decision of the 
Court of Appeals of New York, quite apart from 
the loss of money in advertising by the unions and 
in futile, hopeless inspection on the part of the state, 
is quite beyond the possibility of calculation. 

From the day when this decision became effective, 
the interests of the purchasing public and of the 
tenement dwellers have been practically identical, 
and both have been sacrificed to the convenience and 
the profit of the manufacturers. 

For twenty years the state of New York has pro- 
claimed through its highest court that it cannot pro- 
tect the homes of its industrially weakest citizens 
from invasion by the materials of their industry. 
These materials are owned by rich and powerful 
employers, strongly organized locally and nation- 
ally, and are foisted upon the meager dwellings of 
the poor solely for the purpose of saving to the em- 
ployers the cost of heat, light, cleaning and, far 
more important, rent of workrooms. For the con- 
venience of the powerful, the weakest industrial 
factors in the community, the widows burdened with 
young children, the daughters kept at home by bed- 
245 



SOME ETHICAL GAINS 

ridden parents, have been invaded by industry and 
by inspectors. This forcing of industry into the 
tenements has fostered the behef that work must be 
done by all who live there, particularly if they are 
poor and sick. Thus devotion to the needle and the 
pastepot has become a sort of touchstone measuring 
the "worthiness" or the "helpableness" of the wom- 
en who have dependent members of the family. 

Meanwhile, the manufacturer or the merchant 
tailor, the owner of the goods, bears no responsi- 
bility towards the community, beyond the require- 
ments that he must file with the factory inspectors, 
when so requested, a correct hst, in the English lan- 
guage, of the addresses to which he sends his goods 
to be made up, and must, before sending goods into 
a tenement, inquire of the Board of Health whether 
there is recorded any present case of infectious or 
communicable disease on the premises. 

Before the case in re Jacobs can be reversed, and 
work in the tenements sweepingly prohibited in the 
interest of the public health, including the health of 
the workers, it may be necessary to provide — by 
way of one more last palliative experiment — for 
placing the goods-owner under a heavy bond for the 
literal fulfilment of the requirements of the legal 
restrictions by all the people to whom his goods are 
entrusted. This would be less than the manufac- 
turer's equitable share of the burden which he in- 
flicts upon society. Since it is for his own conven- 
ience and enrichment that the evil of the sweating 
system is fastened upon society, he should bear the 
whole burden of the cost of inspection, disinfection 
246 



PURCHASERS AND COURTS 

of premises and of goods which have been exposed 
to infection, prosecution of oiTcnders, etc. 

The arguments against prohibition of work in the 
tenements are to be found in the decision in re 
Jacobs, printed in the appendix. The arguments 
for prohibiting outright all such work are twofold, 
those which affect the purchasing public in its 
health and conscience; and those which affect the 
workers in the tenements, in their health, their 
home life, their relation to their industry, and to the 
Hfe of the community of which they form a part. 

The fact that the cigar workers obtained the pas- 
sage of the law prohibiting the manufacture of 
cigars and tobacco in the tenements, sufficiently in- 
dicates their position on the subject. All the re- 
strictions which have been placed upon tenement- 
house manufacture during the twenty years since 
complete prohibition thereof was blocked, have been 
obtained either by the tenement-house workers, or 
with their eager help. 

It may be urged, however, that they are not 
judges of what is best for themselves; that their 
arguments are not sound. It is, therefore, worth 
while to consider who the tenement-house workers 
are. They are, first, the able-bodied men whose 
fathers and sons working in other trades all have 
workrooms provided for them by their employers, 
such, for instance, as employees in the printing and 
binding trades, in wood-working, upholstery, boot 
and shoe making, and all the other industries in 
which the use of steam or electricity, or the nature 
of the goods, make it advantageous to the employer 
247 



SOME ETHICAL GAINS 

to have the work done in a factory or a workshop, 
(what possible advantage is gained for these men 
by working in their kitchens and bedrooms, in the 
midst of the cooking, washing, scrubbing, and care 
of the babies ? Obviously none ! 

The second contingent of home-workers are the 
able-bodied immigrant girls. These suffer the dis- 
advantages of losing contact with the English 
speaking employers and fellow workers in the fac- 
tory or workshop. They use foot power instead of 
steam or electricity, and thus earn less money with 
more exertion. They spend the day in the same air 
in which they had spent the night, losing the change 
and exercise which would attend travel to and from 
the factory. They lose the esprit de corps which 
arises from work in a group, and their wages are 
correspondingly wretched. There is no standard of 
wages and hours ; they take what the employer gives 
them ; and they work until the task is accomplished. 
For them there is no opening hour, no closing time. 
When work is done, they cease to drive the machine, 
not until then. 

The children whose school life is sacrificed to the 
need of being on hand to fetch and carry are losers, 
pure and simple. So are the wretched little boys 
and girls who are still too young to fetch and carry, 
but can be employed in stringing beads and pulling 
basting threads, in pasting boxes and bags, in wrap- 
ping paper around strips of wire to make stems for 
artificial flowers, in digging the kernels out of nuts, 
or in cracking the nuts themselves. 

Finally, there are the widows with young chil- 
248 



PURCHASERS AND COURTS 

dren, the daughters with bedridden old fathers or 
mothers, — the women who cannot leave home to 
work. For these persons, work in the home is an evil 
and an evil only. Not one of them can really support 
herself while doing the housework and caring for 
her dependents, and the community which requires 
that a woman so placed shall go through the forms 
of work for self-support, deserves all the punish- 
ment that it receives in the form of transmitted dis- 
ease. All such women are already in the receipt 
of charitable aid, and the humane and enlightened 
thing for the community to do in their case is to 
make that aid adequate to their needs, absolving 
them from working for the market, on condition 
that they take suitable care of the invalids or the 
children who are dependent upon them. In the 
long run, the community pays many times over in 
the form of disease transmitted from the sickroopis, 
and of reformatory life provided for the children 
neglected by their overworked mothers in the effort 
to do the impossible, for every economy which it 
attempts to make by means of relief withheld from 
such dependent families. 

The men in the trades afflicted with tenement 
work have always maintained that, if they could be 
freed from their slavery to their kitchens and bed- 
rooms, and enabled to work in suitable workshops, 
they could then organize their trade in such ways as 
to command wages sufficient to support their fam- 
ilies, including their sick and dependent relatives. 
It is only necessary to know somewhat intimately 
two brothers, one a tailor working at home and the 
249 



SOME ETHICAL GAINS 

other a printer working in a shop, to be persuaded 
of the truth of this contention. For the skill re- 
quired in the two trades is of about the same grade, 
the difference being confined to the organization of 
the industry itself. 

There is a wide-spread belief that the prevailing 
cheapness of ready-made clothing is due to the util- 
ization of the ill-paid labor of women and children 
in the tenement homes ; that the wage-earner in the 
non-sweated trades profits by the sufferings of the 
sweaters' victims, and wears better garments by rea- 
son of their poverty and the degradation of this 
great trade. This is, however, the exact reverse of 
the truth. The cheapness of our garments is at- 
tained in spite of the sweating system, not because 
of it. Indeed, it is doubtful whether the fall in 
prices of garments is commensurate with the fall in 
the prices of the cloth of which they are made. 
Certain it is that cloth is vastly cheaper than it was 
thirty years ago. The methods of placing goods of 
all kinds upon the market (garments and cloth for 
making garments included) have been revolution- 
ized in the direction of cheapness within the mem- 
ory of all of us. That part of the work of making 
garments which lies outside of tenements has also 
been cheapened by the general application of steam 
machinery to garment-cutting. These three great 
modern improvements have enabled the corpora- 
tions which control the garment trade to prolong 
the life of the foot-power sewing machine and the 
tenement-house workroom. 

The purchasing public, made gullible, perhaps, 
250 



PURCHASERS AND COURTS 

by its own greed for bargains, has willingly believed 
that in this one set of trades alone primitive ma- 
chines and petty shops maintaining a multitude of 
middlemen were really cheaper in the end (because 
they employ the worst paid women and girls to be 
found in the field of manufacture) than well- 
equipped plants, with power furnished by steam or 
electricity and conducted by managers of higher in- 
telligence. 

It has become an axiom in political economy that 
high-priced labor stimulates the application of ma- 
chinery. On the other hand, the presence in the 
tenements of girls who sew on buttons and run er- 
rands for wages ranging from thirty cents to sev- 
enty cents a week, and of women who sew at foot- 
power machines for $3.00 to $5.00 a week from ten 
to twenty hours a day during the five to seven 
months which form the busy season, and receive 
relief from public and private charities during the 
remainder of the year, distinctly tends to prolong 
the present primitive and belated equipment of this 
part of the garment trades. It is, perhaps, not too 
much to say that the thousands of women and girls 
in the tenements present a serious obstacle to the 
process of lifting the garment trades from their 
present degradation to the level of the factory 
trades. 

Under the sweating system, the wholesaler or 
the merchant tailor shifts the burden of rent from 
himself to the tailor who sews in a tenement-house 
kitchen or bedroom. The wholesaler or the mer- 
chant tailor farther avoids the risk attendant upon 
251 



SOME ETHICAL GAINS 

maintaining a plant equipped with steam or elec- 
tricity throughout the dull season. He offsets, as 
far as he can, the added expense of a horde of 
middlemen, by subdividing the work of the women 
and girls in the tenements and simplifying it to the 
utmost extreme, so that skill in the worker is re- 
duced to the last degree, and wages follow skill in 
the direction of zero. Hence we find in the tene- 
ments ''hand girls" whose backs grow crooked over 
the simplest of hemming, felling, and sewing on 

V-^uttons, and "machine girls" whose exertion of foot 
power entails tuberculosis and pelvic disorders ruin- 
ous to themselves at present and to their children in 
the future. The foul, ill-ventilated, often damp 
shops, the excessive speed and intensity of the work, 
the ceaseless exertion of the limbs throughout inter- 
minable days, and the grinding poverty of these 
workers combine to render consumption the charac- 
teristic disease of these trades. The very youth of 

^-^ the workers increases their susceptibility to injury 
and disease. Young backs grow crooked over the 
machines, young eyes and membranes are irritated 
by the fluff and dust disengaged from cheaply dyed 
woolen goods by flying needles. The eagerness of 
young workers is stimulated to the highest pitch by 
ill-paid piece-work and the uncertainty of its con- 
tinuance. 

All this wretchedness, attending this belated sur- 
vival of primitive organization in a great industry, 
surely cannot permanently survive in the face of the 
advantages which mechanical power possesses over 
foot power. It is only a question of time when the 
252 



PURCHASERS AND COURTS 

garment trades shall be placed upon the factory 
level. 

This change, however, cannot reasonably be ex- 
pected of the corporations which control the gar- 
ment trades, or of the growing intelligence of the 
sweaters' victims. It will be brought about, if at 
all, by an enlightened public refusing to wear tene- 
ment-made garments, and embodying its will in pro- 
hibitory legislation carried much farther than the 
tentative measures of regulation now in force. 

A necessary preliminary to this revolt against 
tenement goods is a clear perception of the truth 
that no one (except possibly the wholesaler) profits 
by the pauperism and suffering of the men, women 
and children wdio work in tenement rooms. 

To the decision of the Court of Appeals of New 
York in the case in re Jacobs, is directly due the 
continuance and growth of tenement manufacture 
and of the sweating system in the United States, 
and its present prevalence in New York. 

Among the consequences and the accompani- 
ments of the system are congestion of the popula- 
tion in the tenement districts ; the ruin of home life 
in the dwellings used as workrooms; child labor in 
the homes; endemic disease (especially tubercu- 
losis) due to the overcrowding and poverty of 
skilled workers ; chronic pauperism of thousands of 
skilled working people during a part of the year in 
a series of important trades; insanity due to over- 
work followed by the anxiety of a prolonged period 
of unemployment; and suicide, the self-intlictcd 
253 



SOME ETHICAL GAINS 

death of a garment-worker being of almost daily oc- 
currence in New York and Chicago. 

The extent of these evils cannot, of course, be 
itemized in detail. They are so great at the present 
time that unremitting effort is needed to abolish the 
system of which they are the consequences and the 
accompaniments. 

For this purpose it is necessary to enact a statute 
so drawn as to meet the opinion of the Court of 
Appeals that a measure prohibiting only tobacco 
manufacture in the tenements was insufficient. The 
new prohibition must include all manufacture in 
tenements. 

•The principle that the health of the employees is 
not a part of the public health and, therefore, not 
a reason for prohibiting a given mode of manufac- 
ture is no longer tenable in the presence of the de- 
cisions of the Supreme Court of the United States 
in the cases of Holden vs. Hardy and Lochner vs. 
New York^To assure the abandonment of this 
obsolete position, however, public opinion, includ- 
ing the courts, must be effectively enlightened upon 
every aspect of tenement-house manufacture. 

In the case in re Jacobs, the Court of Appeals of 
New York fell into the same error which has been 
elsewhere pointed out in the Illinois case, Ritchie vs. 
the People. The court has no apparatus for inves- 
tigating the conditions of industry. But the legis- 
lature, through its investigating committees, pos- 
sesses all the needful apparatus for investigation. 
When the court sets up its non-acquaintance with 
the existing conditions as a reason for over-riding 

254 



PURCHASERS AND COURTS 

the action of the legislature, the purchasing public 
is left with no redress and no clear line of action 
marked out for the future. 

How can the courts be enlightened and instructed 
concerning conditions as they exist? This is the 
burning question which confronts both the purchas- 
ers and the wage-earners in all those cases in which 
the health of the whole community is affected in 
ways less conspicuous than epidemic smallpox. 
How can the gradual, cumulative effect of working 
conditions, and of living conditions, upon the public 
health, be made obvious to the minds of the judges 
composing the courts of last resort? 

The decisions in the cases in re Jacobs, Ritchie vs. 
the People, and Lochner vs. New York indicate that 
a satisfactory reply to this question is a prerequisite 
to farther ethical gains in wide industrial fields by 
means of legislation. 



255 



APPENDIX I 

CANTON COTTON MILLS vs. EDWARDS 
(Supreme Court of Georgia. June lO, 1904.) 

Infants — Capacity — Injury to Employee — Pe- 
tition 

Wylie Edwards, by his next friend, brought suit 
against the Canton CottonJVIills for personal injuries, 
alleging that on February 10, 1902, the plaintiff, 
being a child ten years old, was employed to sweep 
floors and make bands for the spinning-room. That, 
in order to get water to drink, it was necessary for 
him to pass the entire length of defendant's factory, 
filled with swiftly moving machinery, and that after 
obtaining a drink of water, and while returning, it 
was necessary to pass a machine called a "finisher." 
That he stopped to observe the lap of cotton as it 
came out of the machine onto the roll. Boylike, and 
with no knowledge of the danger, he laid his hand 
on the roll, as he had seen the man in charge of the 
machine do, when, in some way unknown to the 
plaintifif, his hand was caught and drawn between 
the rolls, to his great damage. That plaintiff was 
not aware of the dangerous character of the machine, 
nor had he been warned of its danger. That he 
was so young as not to be aware of the dangerous 
character of defendant's machinery; nor was he 
256 



APPENDIX I 

capable of appreciating and guarding aginst such 
dangers; nor was he capable of understanding, re- 
membering and acting upon warnings that might 
have been given by defendant ;and of all this defend- 
ant had full knowledge. That defendant was negli- 
gent, in that it retained in its employment, and re- 
quired to be in its mills among its machinery, a child 
too young to realize and guard against a danger, and 
too young to appreciate and act upon any warning, 
and too young to work in such a place. That it was 
negligent in failing to warn him, and in failing so to 
guard its machinery as to make the factory safe for 
him to work in. That the defendant was negligent 
in not protecting him from dangers incident to work 
about a machine of whose dangers he knew nothing, 
and which, by reason of his youth and inexperience, 
he was incapable of guarding against. 

The defendant demurred on the grounds that the 
petition set out no cause of action ; that the injury 
was the direct result of plaintiff's own negligence ; 
that it was not negligence in defendant not to warn 
plaintiff, nor was it negligence to employ a child of 
the age of plaintiff, nor was it bound to inform him 
as to the dangerous machines in and about the mills 
on which plaintiff was not expected to work. 

The court overruled the demurrer, and the com- 
pany excepted. 

Lamar, J. The age of majority and the age 
under which there can be no criminal responsibility 
have been arbitrarily declared by statute. But 
neither nature nor the courts have fixed any definite 
age at which children attain the capacity to work. 
17 257 



SOME ETHICAL GAINS 

In some children the mind outruns the body, and in 
others the body outgrows the mind. Some are weak 
and undeveloped at the age of fourteen, and others 
are strong and vigorous at ten. Some at an early 
age can hunt, drive, ride, swim and work in many 
occupations with ordinary safety, while others of the 
same age, with even greater physical strength, by 
reason of want of experience, would be unable to 
engage in the same sports or labors without serious 
risk. The question of capacity, therefore, is not to 
be determined as a matter of law by the courts, but 
as a matter of fact by the jury ; applying the principle 
involved in Civ. Code 1895, § 2901, which declares 
that "due care in a child of tender years is such care 
as its capacity, mental and physical, fits it for exercis- 
ing in the actual circumstances of the occasion and 
situation under investigation." The petition alleged 
that the plaintiff was ten years old, ignorant of the 
character of the machine and of the danger of work- 
ing therewith as he had seen others do ; that he had 
not been warned ; that he was incapable of appreciat- 
ing, remembering or acting upon any warnings that 
might have been given him ; and that the company 
was not only negligent in failing to warn plaintiff, 
but also in failing to guard its machinery so as to 
make the factory safe as a place in which to work. 
These allegations made it proper to overrule the de- 
murrer. Compare Evans z's. Josephine Mills, 119 
Ga. 448, 46 S. E. 674. 

Judgment affirmed. All the justices concurring. 



258 



APPENDIX II 

RI TCHIEj ;^. THE PEOPLE 

(Supreme Court of Illinois. March 14, iSt^s.) 

Constitutional Law — Subject Expressi-u iit 

Title — Due Process of Law — Eight-Hour 

Factory Act — Appropriations. 

Act June 17, 1893, § 5, which declares that "no 
female shall be employed in any factory or workshop 
more than eight hours in any one day or 48 hours in 
any one week," is unconstitutioi,ial, as depriving per- 
sons of property and liberty without due process of 
law. 

Error to criminal court, Cook county; Nathaniel 
C. Sears, Judge. 

Prosecution of William E. Ritchie for violation of 
the eight-hour law. Defendant was convicted, and 
he brings error. Reversed. 

Magruder, J. Upon complaint of the factory in- 
spector appointed under the law hereinafter named, a 
warrant was issued by a justice of the peace of Cook 
county against plaintiff in error, and upon his ap- 
pearance, and waiver in writing of jury trial, a trial 
was had, resulting in a finding of guilty, and the im- 
position of a fine of five dollars and costs. The com- 
plaint charged that on a certain day in February, 
1894, plaintiff in error employed a certain adult 
259 



SOME ETHICAL GAINS 

female of the age of more than i8 years at work in a 
factory for more than eight hours during said day. 
The plaintiff in error took an appeal to the criminal 
court of Cook county, and waived a jury, and upon 
trial in that court before the judge without a jury 
he was convicted and fined. The case is brought to 
this court by writ of error for the purpose of review- 
ing such judgment of the criminal court. 

Upon the trial of the cause the defendant below 
submitted written propositions to be held as law in 
the decision of the case. By these propositions the 
trial court was asked to hold that the act of the legis- 
lature of Illinois entitled "An act to regulate the man- 
ufacture of clothing, wearing apparel, and other ar- 
ticles in this state, and to provide for the appoint- 
ment of state inspectors to enforce the same, and to 
make an appropriation therefor," approved June 17, 
1893 (Laws 111. 1893, p. 99), and each and every 
section thereof, is illegal and void, and contrary to 
and in violation of the Constitutions of Illinois and 
of the United States. The court refused all of the 
propositions so submitted, and exception was taken 
by the defendant. The present prosecution, as is 
conceded by counsel for both sides, is for an alleged 
violation of section 5 of said act. That section is as 
follows : ''No female shall be employed in any fac- 
tory or workship more than eight hours in any one 
day or forty-eight hours in any one week." "Fac- 
tory" or "workshop" is defined in section 7 of the act 
as follows : "The words 'manufacturing establish- 
ment,' 'factory' or 'workshop,' wherever used in this 
act, shall be construed to mean any place where goods 
260 



APPENDIX II 

or products are nianufaclured or repaired, cleaned or 
sorted, in whole or in part, for sale or for wages." 
Punishment for violation of the provisions of the act 
is provided for by section 8 thereof in the following 
words : "Any person, firm or corporation, who fails 
to comply with any provision of this act shall be 
deemed guilty of a misdemeanor, and on conviction 
thereof shall be fined not less than three dollars, nor 
more than one hundred dollars for each oflfensc." 

The main objection urged against the act, and that 
to which the discussion of counsel on both sides is 
chiefly directed, relates to the validity of section 5. 
It is contended by counsel for plaintiff in error that 
that section is unconstitutional as imposing unwar- 
ranted restrictions upon the right to contract. On 
the other hand, it is claimed by counsel for the people 
that the section is a sanitary provision, and justifiahle 
as an exercise of the police power of the state. Does 
the provision in question restrict the right to con- 
tract? The words, "no female shall be employed," 
import action on the part of two persons. There 
must be a person who docs the act of employing and 
a person who consents to the act of being employed. 
Webster defines "employment" as not only "the act 
of employing," but also "the state of being em- 
ployed." The prohibition of the statute is therefore 
twofold : First, that no manufacturer or proprietor 
of a factory or workshop shall employ any female 
therein more than eight hours in one day; and, sec- 
ond, that no female shall consent to be so employed. 
It thus prohibits employer and employee from 
uniting their minds or agreeing upon any longer 
261 



SOME ETHICAL GAINS 

service during one day than eight hours. In other 
words, they are prohibited, the one from contracting 
to employ, and the other from contracting to be em- 
ployed, otherwise than as directed. "To be 
'employed' in anything means not only the act of 
doing it, but also to be engaged to do it ; to be under 
contract or orders to do it." Hence a direction that 
a person shall not be employed more than a specified 
number of hours in one day is at the same time a di- 
rection that such person shall not be under contract 
to work for more than a specified number of hours 
in one day. It follows that section 5 does limit and 
restrict the right of the manufacturer and his em- 
ployee to contract with each other in reference to the 
hours of labor. 

Is the restriction thus imposed an infringement 
upon the constitutional rights of the manufacturer 
and the employee ? Section 2 of article 2 of the con- 
stitution of Illinois provides that "no person shall be 
deprived of life, liberty or property, without due 
process of law." A number of cases have arisen 
within recent years in which the courts have had oc- 
casion to consider this provision, or one similar to it, 
and its meaning has been quite clearly defined. The 
privilege of contracting is both a liberty and property 
right. Liberty includes the right to acquire prop- 
erty, and that means and includes the right to make 
and enforce contracts. The right to use, buy, and 
sell property and contract in respect thereto is pro- 
tected by the constitution. Labor is property, and 
the laborer has the same right to sell his labor, and 
to contract with reference thereto, as has any other 
262 



APPENDIX II 

property owner. In this country tlic legislature has 
no power to prevent persons who are siti juris from 
making their own contracts, nor can it interfere with 
the freedom of contract between the workman and 
the employer. The right to labor or employ labor, 
and make contracts in respect thereto upon such 
terms as may be agreed upon between the parties, is 
included in the constitutional guaranty above quoted. 
The protection of property is one of the objects for 
which free governments are instituted among men. 
Const. 111. Art. 2, § i. The right to acquire, possess, 
and protect property includes the right to make rea- 
sonable contracts ; and when an owner is deprived of 
one of the attributes of property, like the right to 
make contracts, he is deprived of his property, within 
the meaning of the Constitution. The fundamental 
rights of Englishmen, brought to this country by its 
original settlers, and wrested, from time to time, in 
the progress of history, from the sovereigns of the 
English nation, have been reduced by Blackstone to 
three principal or primary articles, "the right of per- 
sonal security, the right of personal liberty, and the 
right of private property." The right to contract is 
the only way by which a person can rightfully acquire 
property by his own labor. "Of all the rights of 
persons it is the most essential to human happiness." 
This right to contract, which is thus included in the 
fundamental rights of liberty and property, cannot be 
taken away "without due process of law." The 
words "due process of law" have been held to be 
synonymous with the words "law of the land." 
Blackstone says : '"The third absolute right, inher- 
263 



SOME ETHICAL GAINS 

ent in every Englishman, is that of property, which 
consists in the free use, enjoyment and disposal of 
all his acquisitions, without any control or diminu- 
tion, save only by the laws of the land." The "law 
of the land" is "general public law, binding upon all 
the members of the community, under all circum- 
stances, and not partial or private laws, affecting the 
rights of private individuals, or classes of individ- 
uals." The "law of the land" is the opposite of 
"arbitrary, unequal, and partial legislation." State 
vs. Loomis, supra. The legislature has no right to 
deprive one class of persons of privileges allowed to 
other persons under like conditions. The man who 
is forbidden to acquire and enjoy property in the 
same manner in which the rest of the community is 
permitted to acquire and enjoy it is deprived of 
liberty in particulars of primary importance to his 
pursuit of happiness. If one man is denied the 
right to contract as he has hitherto done under the 
law, and as others are still allowed to do by the law, 
he is deprived of both liberty and property to the ex- 
tent to which he is thus deprived of the right. In 
line with these principles, it has been held that it is 
not competent, under the Constitution, for the legis- 
lature to single out owners and employers of a par- 
ticular class, and provide that they shall bear bur- 
dens not imposed on other owners of property or em- 
ployers of labor, and prohibit them from making con- 
tracts which other owners or employers are permitted 
to make. 

We are not unmindful that the right to contract 
may be subject to limitations growing out of the 
264 



APPENDIX II 

duties which the individual owes to society, to the 
pubHc, or the government. These hniitations are 
sometimes imposed by the obHgation to so use one's 
own as not to injure another, by the character of 
property as affected with a pubHc interest or devoted 
to a pubHc use, by the demands of pubHc poHcy or 
the necessity of protecting the pubHc from fraud or 
injury, by the want of capacity, by the needs of the 
necessitous borrower as against the demands of the 
extortionate lender. But the power of the legisla- 
ture to thus limit the right to contract must rest upon 
some reasonable basis, and cannot be arbitrarily exer- 
cised. It has been said that such power is based in 
every case on some condition, and not on the absolute 
right to control. Where legislative enactments, 
which operate upon classes of individuals only, have 
been held to be valid, it has been where the classifica- 
tion was reasonable and not arbitrary. 

Applying these principles to the consideration of 
section 5, we are led irresistibly to the conclusion that 
it is an unconstitutional and void enactment. While 
some of the language of the act is broad enough to 
embrace within its terms the manufacture of all kinds 
of goods or products, other provisions are limited to 
the manufacture of "coats, vests, trousers, knee 
pants, overalls, cloaks, shirts, ladies' waists, purses, 
feathers, artificial flowers, or cigars, or any wearing 
apparel of any kind whatsoever." The act is en- 
titled "An act to regulate the manufacture of cloth- 
ing, wearing apparel and other articles," etc. Under 
the rule of construction heretofore laid down by this 
court that general and specific words, which are 
26s 



SOME ETHICAL GAINS 

capable of an analogous meaning, being associated 
together, take color from each other, so that the gen- 
eral words are restricted to a sense analogous to the 
less general, it would seem that the general words, 
"and other articles," would be restricted to a mean- 
ing analogous to the meaning of the words "clothing, 
wearing apparel," and consequently that they would 
only embrace articles of the same kind as those ex- 
pressly enumerated. But whether this is so, or not, 
we are inclined to regard the act as one which is 
partial and discriminating in its character. If it be 
construed as applying only to manufacturers of 
clothing, wearing apparel, and articles of a similar 
nature, we can see no reasonable ground for prohibit- 
ing such manufacturers and their employees from 
contracting for more than eight hours of work in one 
day, while other manufacturers and their employees 
are not forbidden to so contract. If the act be con- 
strued as applying to manufacturers of all kinds of 
products, there is no good reason why the prohibition 
should be directed against manufacturers and their 
employees, and not against merchants, or build- 
ers, or contractors, or carriers, or farmers, or persons 
engaged in other branches of industry, and their em- 
ployees therein. Women employed by manufactur- 
ers are forbidden by section 5 to make contracts to 
labor longer than eight hours in a day, while women 
employed as saleswomen in stores, or as domestic 
servants, or as bookkeepers, or stenographers, or 
typewriters, or in laundries, or other occupations not 
embraced under the head of manufacturing, are at 
liberty to contract for as many hours of labor in a 
266 



APPENDIX II 

clay as they choose. The manner in which the section 
thus discriminates against one class of employers and 
employees and in favor of all others places it in oppo- 
sition to the constitutional guaranties hereinbefore 
discussed, and so renders it invalid. 

But, aside from its partial and discriminating char- 
acter, this enactment is a purely arbitrary restriction 
upon the fundamental rights of the citizen to con- 
trol his or her own time and faculties. It substitutes 
the judgment of the legislature for the judgment of 
the employer and employee in a matter about which 
they are competent to agree with each other. It as- 
sumes to dictate to what extent the capacity to labor 
may be exercised by the employee, and takes away 
the right of private judgment as to the amount and 
duration of the labor to be put forth in a specified 
period. Where the legislature thus undertakes to 
impose an unreasonable and unnecessary burden 
upon any one citizen or class of citizens it transcends 
the authority intrusted to it by the constitution, even 
though it imposes the same burden upon all other 
citizens or classes of citizens. General laws may be 
as tyrannical as partial laws. A distinguished 
writer upon constitutional limitations has said that 
general rules may sometimes be as obnoxious as 
special, if they operate to deprive individual citizens 
of vested rights, and that while every man has a right 
to require that his owm controversies shall be judged 
by the same rules which are applied in the con- 
troversies of his neighbors, the whole community is 
also entitled, at all times, to demand the protection 
of the ancient principles which shield private rights 
267 



SOME ETHICAL GAINS 

against arbitrary interference, even, though such in- 
terference may be under a rule impartial in its oper- 
ation. Section i of article 2 of the Constitution of 
Illinois provides as follows : "All men are by nature 
free and independent, and have certain inherent and 
inalienable rights; among these are life, liberty and 
the pursuit of happiness. To secure these rights and 
the protection of property governments are instituted 
among men, deriving their just powers from the con- 
sent of the governed." Liberty, as has already been 
stated, includes the right to make contracts, as well 
with reference to the amount and duration of labor 
to be performed as concerning any other lawful 
matter. Hence the right to make contracts is an in- 
herent and inalienable one, and any attempt to unrea- 
sonably abridge it is opposed to the Constitution. 
As was aptly said in Leep vs. Railway Co., supra: 
"When the subject of contract is purely and exclu- 
sively private, unaffected by any public interest or 
duty to person, to society, or government, and the 
parties are capable of contracting, there is no condi- 
tion existing upon which the legislature can interfere 
for the purpose of prohibiting the contract or con- 
trolling the terms thereof." An instance of the care 
with which this right to contract has been guarded 
may be found in chapter 48 of the Revised Statutes 
of this state, where an act, passed in 1867, makes 
eight hours of labor in certain employments a legal 
day's work, "where there is no special contract or 
agreement to the contrary," and the second section 
of which act contains the following provision : 
"Nor shall any person be prevented by anything here- 
268 



APPENDIX II 

in contained from working as many hours over time 
or extra hours as he or she may agree." An ordi- 
nance of the city of Los Angeles, making it a mis- 
demeanor for any contractor to employ any person 
to work more than eight hours a day where the work 
was to be performed under any contract with the city, 
was held to be unconstitutional and void, the supreme 
court of California there saying: "It is claimed in 
support of the petition that this ordinance was un- 
constitutional and void. We think this objection is 
well taken. It is simply an attempt to prevent cer- 
tain parties from employing others in a lawful busi- 
ness, and paying them for their services, and is a 
direct infringement of the right of such persons to 
make and enforce their contracts. If the service to 
be performed were unlawful, or against public policy, 
or the employment were such as might be unfit for 
certain persons; as, for example, females or infants, 
the ordinance might be upheld as a sanitary or police 
regulation, but we cannot conceive of any theory 
upon wTiich a city could be justified in making it a 
misdemeanor for one of its citizens to contract with 
another for services to be rendered, because the con- 
tract is that he shall work more than a limited num- 
ber of hours per day." In the case of Low vs. 
Printing Co. (recently decided by the supreme court 
of Nebraska, June 6, 1894) 59 N. W. 362, an act of 
the legislature of that state, providing that eight 
hours should constitute a legal day's work for all 
classes of mechanics, servants, and laboiers through- 
out the state, excepting those engaged in farm and 
domestic labor, and making violation of the pro- 
269 



SOME ETHICAL GAINS 

visions a misdemeanor, was held to be unconstitu- 
tional and void, both as being special legislation and 
as attempting to prevent persons legally competent 
to enter into contracts from making their own con- 
tracts. 

But it is claimed on behalf of defendant in error 
that this section can be sustained as an exercise of 
the police power of the state. The police power of 
the state is that power which enables it to promote 
the health, comfort, safety, and welfare of society. 
It is very broad and far-reaching, but is not without 
its limitations. Legislative acts passed in pursuance 
of it must not be in conflict with the Constitution, 
and must have some relation to the ends sought to be 
accomplished; that is to say, to the comfort, welfare, 
or safety of society. Where the ostensible object 
of an enactment is to secure the public comfort, wel- 
fare, or safety, it must appear to be adapted to that 
end. It cannot invade the rights of persons and 
property under the guise of a mere police regulation, 
when it is not such in fact; and where such an act 
takes away the property of a citizen or interferes with 
his personal liberty, it is the province of the courts to 
determine whether it is really an appropriate measure 
for the promotion of the comfort, safety, and welfare 
of society. There is nothing in the title of the act of 
1893 to indicate that it is a sanitary measure. The 
first three sections contain provisions for keeping 
workshops in a cleanly state, and for inspection to 
ascertain whether they are so kept. But there is 
nothing in the nature of the employment contem- 
plated by the act which is in itself unhealthy or un- 
270 



A P r E N D I X II 

lawful or injurious to the public morals or welfare. 
Laws restraining: the sale and use of opium and in- 
toxicating liquors have been sustained as valid undrr 
the police power. Undoubtedly, the public health, 
welfare, and safety may be endangered by the gen- 
eral use of opium and intoxicating drinks. But it 
cannot be said that the same consequences are likely 
to flow from the manufacture of clothing, wearing 
apparel, and other similar articles. "The manufac- 
ture of cloth is an important industry, essential to 
the welfare of the community." We are not aware 
that the preparation and manufacture of tobacco into 
cigars is dangerous to the public health. It is not 
the nature of the things done, but the sex of the per- 
sons doing them, which is made the basis of the claim 
that the act is a measure for the promotion of the 
public health. It is sought to sustain the act as an 
exercise of the police power upon the alleged ground 
that it is designed to protect woman on account of 
her sex and physique. It will not be denied that 
woman is entitled to the same rights, under the con- 
stitution, to make contracts with reference to her 
labor, as are secured thereby to men. The first sec- 
tion of the fourteenth amendment to the Constitution 
of the United States provides : "No state shall make 
or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States, nor 
shall any state deprive any person of life, liberty, or 
property without due process of law, nor deny to 
any person within its jurisdiction the equal protec- 
tion of the law." It has been held that a woman is 
both a "citizen" and a "person" within the meaning 
271 



SOME ETHICAL GAINS 

of this section. The privileges and immunities here 
referred to are, in general, "protection by the govern- 
ment, with the right to acquire and possess property 
of every kind, and to pursue and obtain happiness 
and safety, subject, nevertheless, to such restraints 
as the government may prescribe for the general 
good of the whole." As a "citizen," woman has the 
right to acquire and possess property of every kind. 
As a "person," she has the right to claim the benefit 
of the constitutional provision that she shall not be 
deprived of life, liberty, or property without due 
process of law. Involved in these rights thus guar- 
anteed to her is the right to make and enforce con- 
tracts. The law accords to her, as to every other 
citizen, the right to gain a livelihood by intelligence, 
honesty, and industry in the arts, the sciences, the 
professions, or other vocations. Before the law, her 
right to a choice of vocations cannot be said to be 
denied or abridged on account of sex The tendency 
of legislation in this state has been to recognize the 
rights of woman in the particulars here specified. 
The act of 1867, as above quoted, by the use of the 
words "he or she," plainly declares that no woman 
shall be prevented by anything therein contained 
from working as many hours overtime or extra hours 
as she may agree; and thereby recognizes her right 
to contract for more than eight hours of work in 
one day. An act approved March 2,2, 1872, entitled 
"An act to secure freedom in the selection of an oc- 
cupation," etc., provides that "no person shall be pre- 
cluded or debarred from any occupation, profession 
or employment (except military) on account of sex." 

2^2 



APPENDIX II 

The married woman's act of 1874 authorizes a mar- 
ried woman to sue and be sued without joining her 
husband, and provides that contracts may be made 
and liabilities incurred by her and enforced against 
her to the same extent and in the same manner as if 
she were unmarried ; and that she may receive, use, 
and possess her own earnings, and sue for the same 
in her own name, free from the- interference of her 
husband or his creditors. Section 5 of the act of 
1893 is broad enough to inchidc married women and 
adult single women, as well as minors. As a general 
thing, it is the province of the legislature to deternn'ne 
what regulations arc necessary to protect the public 
health and secure the public safety and welfare. 
But, inasmuch as sex is no bar, under the constitution 
and law, to the endowment of woman with the fun- 
damental and inalienable rights of liberty and prop- 
erty, which include the right to make her own con- 
tracts, the mere fact of sex will not justify the legis- 
lature in putting forth the police power of the state 
for the purpose of limiting her exercise of those 
rights, unless the courts are able to sec that there is 
some fair, just, and reasonable connection between 
such limitation and the public health, safety, or wel- 
fare proposed to be secured by it. People Z'S. Gill- 
son, supra. 

Counsel for the people refer to statements in the 
text-books recognizing the propriety of regulations 
which forbid women to engage in certain kinds of 
work altogether. Thus it is said in Cooley on Con- 
stitutional Limitations, that "some employments 
.... may be admissible for males and improper for 
18 273 



SOME ETHICAL GAINS 

females, and regulations recognizing the impropriety, 
and forbidding women engaging in them, would be 
open to no reasonable objection." Attention is also 
called to the above-mentioned act of March 22, 1872, 
which makes an exception of military service, and 
provides that nothing in the act shall be construed as 
requiring any female to work on streets or roads, or 
serve on juries. But, without stopping to comment 
upon measures of this character, it is sufficient to 
say that what is said in reference to them has no ap- 
plication to the act of 1893. That act is not based 
upon the theory that the manufacture of clothing, 
wearing apparel, and other articles is an improper 
occupation for women to be engaged in. It does not 
inhibit their employment in factories or workshops. 
On the contrary, it recognizes such places as proper 
for them to work in by permitting their labor therein 
during eight hours of each day. The question here 
is not whether a particular employment is a proper 
one for the use of female labor, but the question is 
whether, in an employment which is conceded to be 
lawful in itself, and suitable for woman to engage in, 
she shall be deprived of the right to determine for 
herself how many hours she can and may work dur- 
ing each day. There is no reasonable ground — at 
least none which has been made manifest to us in the 
arguments of counsel — for fixing upon eight hours 
in one day as the limit within which woman can 
work without injur/ to her physique, and be)^ond 
which, if she work, injury will necessarily follow. 
But the police power of the state can only be per- 
mitted to limit or abridge such a fundamental right 
274 



APPENDIX I I 

as the right to make contracts when the exercise of 
such power is necessary to promote the healtli, com- 
fort, welfare, or safety of society or the public; and 
it is questionable whether it can be exercised to pre- 
vent injury to the individual engaged in a particular 
calling. The court of appeals of New York, in pass- 
ing upon the validity of an act "to improve the public 
health by prohibiting the manufacture of cigars and 
preparation of tobacco in any form in tenement 
houses," etc., has said : "To justify this law, it 
would not be sufficient that the use of tobacco may be 
injurious to some persons, or that its manufacture 
may be injurious to those who are engaged in its 
preparation and manufacture; but it would have to 
be injurious to the public health." In re Jacobs, 
supra. Tiedeman, in his work on Limitations of 
Police Power, says : "In so far as the employment 
of a certain class in a particular occupation may 
threaten or inflict damage upon the public or third 
persons, there can be no doubt as to the constitution- 
ality of any statute which prohibits their prosecution 
of that trade. But it is questionable, except in the 
case of minors, whether the prohibition can rest upon 
the claim that the employment will prove hurtful to 

them There can be no more justification for 

the prohibition of the prosecution of certain callings 
by women because the employment will prove hurtful 
to themselves than it would be for the state to pro- 
hibit men from working in the manufacture of white 
lead because they are apt to contract load poisoning, 
or to prohibit occupation in certain parts of iron- 
275 



SOME ETHICAL GAINS 

smelting works, because the lives of the men so en- 
gaged are materially shortened." Section 86. 

We are also referred to statements made in some 
of the text-books to the efifect that the legislature 
may limit the hours of labor of women in manufac- 
turing establishments. These statements appear to 
be based entirely upon the decision of the supreme 
court of Massachusetts in Com. z's. Hamilton 
Manuf'g Co., 120 Mass. 385. There it was held that 
an act providing that no woman over the age of 18 
years should be employed by any person, firm, or cor- 
poration in any manufacturing establishment more 
than 10 hours in any one day was valid. But, under 
the Constitution of Massachusetts (part 2, c. i, § i. 
Art. 4) , the legislature has power to ordain all man- 
ner of reasonable and wholesome statutes, with or 
without penalties, not repugnant to the Constitu- 
tion, "as they shall judge to be for the good and wel- 
fare of the commonwealth, and for the governing 
and ordering thereof, and of the subjects of the 
same." The decision referred to was evidently made 
in view of the large discretion so vested in the legis- 
lative branch of the government; and it was said 
that the act ought to be maintained as a health or 
police regulation, because the legislature deemed the 
employment of manufacturing dangerous to health. 
But the Massachusetts case is not in line with the 
current of authority, as it assumes that the police 
power is practically without limitation. As has been 
already stated, the legislature cannot so use that 
power as to invade the fundamental rights of the 
citizen; and it is for the courts to decide whether a 
276 



APPENDIX II 

measure, which assumes to have been passed in the 
interest of the pubhc health, really "relates to, and is 
convenient and appropriate to promote, the health." 
We said in Lake View Z'S. Rose Hill Cemetery Co., 
70 111. 191 : "As a general proposition, it may be 
stated it is the province of the law-making power to 
determine when the exigency exists calling into exer- 
cise this power. What are the subjects of its exer- 
cise is clearly a judicial question." The reasoning 
of the opinion in the Massachusetts case cited docs 
not seem to us to be sound. It assumes that there is 
no infringement upon the employer's right to con- 
tract, because he may employ as many persons or as 
much labor as he chooses ; nor upon the employee's 
right to contract, because she may labor as many 
hours as she chooses in some other occupation than 
that specified in the statute. This is a begging of 
the question. The right to contract would be value- 
less if it could not be exercised with reference to the 
particular subject-matter in hand. If its exercise is 
forbidden between two persons competent to con- 
tract, and concerning a lawful subject of contract, it 
is none the less abridged because other persons may 
be permitted to contract, or because the same persons 
may be at liberty to contract about some other matter. 
We cannot more appropriately close the discussion of 
this branch of the case than by quoting, and adopting 
as our own, the following words of the New York 
court of appeals in re Jacobs, supra: "When a 
health law is challenged in the courts as unconstitu- 
tional on the ground that it arbitrarily interferes with 
personal liberty and private property, without due 
277 



SOME ETHICAL GAINS 

process of law, the courts must be able to see that it 
has at least in fact some relation to the public health, 
that the public health is the end actually aimed at, 
and that it is appropriate and adapted to that end. 
This we have not been able to see in this law, and 
we must, therefore, pronounce it unconstitutional 
and void. In reaching this conclusion, we have not 
been unmindful that the power which courts possess 
to condemn legislative acts which are in conflict with 
the supreme law should be exercised with great cau- 
tion, and even with reluctance. But, as said by 
Chancellor Kent : 'It is only by the free exercise of 
this power that courts of justice are enabled to repel 
assaults and to protect every part of the government 
and every member of the community from undue and 
destructive innovations upon their charter rights.' " 

Our conclusion is that section 5 of the act of 1893, 
and the first clause of section 10 thereof, are void and 
unconstitutional for the reasons here stated. These 
are the only portions of the act which have been at- 
tacked in the argument of counsel. No reason has 
been pointed out why they are not distinct and sep- 
arate from the balance of the act. The rule is that, 
where a part of a statute is unconstitutional, the re- 
mainder will not be declared to be unconstitutional 
also, if the two are distinct and separable, so that 
the latter may stand though the former becomes of 
no effect. We do not wish to be understood by any- 
thing herein said as holding that section 5 would be 
invalid if it was limited in its terms to females who 
are minors. The judgment of the criminal court of 
278 



APPENDIX II 

Cook county is reversed, and the cause is remanded 
to that court, with directions to dismiss the prosecu- 
tion. Reversed and remanded. 



275? 



APPENDIX III 

HOLDEN vs. HARDY 
(Supreme Court of the United States. February 28, 1898.) 

Constitutional Law — Due Process — Equal 
Protection— .Eight-Hour Lavvs 

1. "Due process of law" implies at least a con- 
formity with natural and inherent principles of jus- 
tice, and forbids that one man's property, or right 
to property, shall be taken for the benefit of another, 
or for the benefit of the state, without compensation, 
and that no one shall be condemned in his person or 
property without an opportunity of being heard in 
his own defense. 

2. The Utah statute forbidding the employment 
of workingmen for more than eight hours per day 
in mines, and in the smelting, reduction, or refining 
of ores or metals, is within the police power of the 
state, and not an unconstitutional interference with 
the right of private contract, or a denial of due 
process of law or the equal protection of the laws. 

Mr. Justice Brewer and Mr. Justice Peckham dis- 
senting. 

In Error to the Supreme Court of the State of 
Utah. 

These were writs of error to review two judg- 
ments of the Supreme Court of the state of Utah 
280 



APPENDIX III 

denying application of the plaintiff in error, Holdcn, 
for his discharge upon two writs of habeas corpus, 
and remanding him to the custody of the sheriff of 
Salt Lake county. 

The facts in case No. 264 were substantially as 
follows : On June 20, 1896, complaint was made to 
a justice of the peace of Salt Lake City that the pe- 
titioner, Holden, had unlawfully employed "one 
John Anderson to work and labor as a miner in the 
underground workings of the Old Jordan ^line, in 
Bingham caiion, in the county aforesaid, for the 
period of ten hours each day; and said defendant, 
on the date aforesaid and continuously since said 
time, has unlawfully required said John Anderson, 
under and by virtue of said employment, to work 
and labor in the underground w'orkings of the mine 
aforesaid for the period of ten hours each day, and 
that said employment was not in case of an emer- 
gency, or w^here life or property was in imminent 
danger, — contrary," etc. 

Defendant, Holden, having been arrested upon a 
warrant issued upon said complaint, admitted the 
facts set forth therein, but said he was not guilty, 
because he is a native-born citizen of the United 
States, residing in the state of Utah; that the said 
John Anderson voluntarily engaged his services for 
the hours per day alleged; and, that the facts 
charged did not constitute a crime, because the act 
of the state of Utah w^iich creates and defines the 
supposed offense is repugnant to the Constitution 
of the United States in these respects : 

"It deprives the defendant and all employers and 
281 



SOME ETHICAL GAINS 

employees of the right to make contracts in a lawful 
way, and for lawful purposes. 

"It is class legislation, and not equal or uniform 
in its provisions. 

''It deprives the defendant and employers and em- 
ployees of the equal protection of the laws, abridges 
the privileges and immunities of the defendant as a 
citizen of the United States, and deprives him of 
his property and liberty without due process of 
law." 

The court, having heard the evidence, found the 
defendant guilty as charged in the complaint, im- 
posed a fine of $50 and costs, and ordered that the 
defendant be imprisoned in the county jail for a 
term of 57 days, or until such fine and costs be paid. 

Thereupon petitioner sued out a writ of habeas 
corpus from the Supreme Court of the state ; annex- 
ing a copy of the proceedings before the justice of 
the peace, and praying his discharge. The Supreme 
Court denied his application, and remanded him to 
the custody of the sheriff, whereupon he sued out 
this writ of error, assigning the unconstitutionality 
of the law. 

In the second case the complaint alleged the un- 
lawful employment by Holden of one William 
Hooley to work and labor in a certain concentrating 
mill — the same being an institution for the reduc- 
tion of ores — for the period of 12 hours per day. 
The proceedings in this case were precisely the same 
as in the prior case, and it was admitted that there 
was no distinction in principle between the two 
cases. 

282 



APPENDIX III 

J. M. Wilson, for plaintiff in error. Chas. J. 
Pence, for defendant in error. 

Mr. Justice Brown, after stating the facts in the 
foregoing language, delivered the opinion of the 
court. 

This case involves the constitutionality of an act 
of the legislature of Utah entitled "An act regulat- 
ing the hours of employment in underground mines 
and in smelters and ore reduction works." The 
following are the material provisions : 

"Section i. The period of employment of work- 
ingmen in all underground mines or workings shall 
be eight hours per day, except in cases of emer- 
gency where life or property is in imminent danger. 

"Sec. 2. The period of employment of working- 
men in smelters and all other institutions for the re- 
duction or refining of ores or metals shall be eight 
hours per day, except in cases of emergency where 
life or property is in imminent danger. 

"Sec. 3. Any person, body corporate, agent, 
manager, or employer, who shall violate any of the 
provisions of sections one and two of this act, shall 
be guilty of a misdemeanor." 

The Supreme Court of Utah was of opinion that, 
if authority in the legislature were needed for the 
enactment of the statute in question, it was found in 
that part of article 16 of the constitution of the 
state which declared that "the legislature shall pass 
laws to provide for the health and safety of em- 
ployees in factories, smelters and mines." As the 
article deals exclusively with the rights of labor, it 
is here reproduced in full, as exhibiting the author- 
283 



SOME ETHICAL GAINS 

ity under which the legislature acted, and as throw- 
ing light upon its intention in enacting the statute 
in question (Laws 1896, p. 219) : 

"Section i. The rights of labor shall have just 
protection through laws calculated to promote the 
industrial welfare of the state. 

*'Sec. 2. The legislature shall provide by law for 
a board of labor, conciliation and arbitration which 
shall fairly represent the interests of both capital 
and labor. The board shall perform duties and re- 
ceive compensation as prescribed by law. 

"Sec. 3. The legislature shall prohibit: 

"(i) The employment of women, or of children 
under the age of fourteen years, in underground 
mines. 

"(2) The contracting of convict labor. 

"(3) The labor of convicts outside prison 
grounds, except on public works under the direct 
control of the state. 

"(4) The political and commercial control of 
employees. 

"Sec. 4. The exchange of blacklists by railroad 
companies, or other corporations, associations or 
persons is prohibited. 

"Sec. 5. The right of action to recover damages 
for injuries resulting in death shall never be abro- 
gated, and the amount recoverable shall not be sub- 
ject to any statutory limitation. 

"Sec. 6. Eight hours shall constitute a day's 
work on all works or undertakings carried on or 
aided by the state, county or municipal govern- 
ments ; and the legislatures shall pass laws to provide 
284 



APPENDIX III 

for the health and safety of employees in factories, 
smelters and mines. 

"Sec. 7. The leg-islature, hy appropriate k-j^nsia- 
tion, shall provide for the enforcement of the pro- 
visions of this article." 

The validity of the statute in question is, however, 
challenged upon the ground of an alleged violation 
of the fourteenth amendment to the Constitution of 
the United States, in that it abridges the privileges 
or immunities of citizens of the United States, de- 
prives both the employer and the laborer of his 
property without due process of law, and denies to 
them the equal protection of the laws. As the three 
questions of abridging their immunities, depriving 
them of their property, and denying them the pro- 
tection of the laws, are so connected that the au- 
thorities upon each are, to a greater or less extent, 
pertinent to the others, they may properly be con- 
sidered together. 

Prior to the adoption of the fourteenth amend- 
ment, there was a similar provision against depriva- 
tion of life, liberty, or property without due process 
of law incorporated in the fifth amendment ; but as 
the first eight amendments to the Constitution were 
obligatory only upon congress, the decisions of this 
court under this amendment have but a partial ap- 
plication to the fourteenth amendment, which op- 
erates only upon the action of the several states. 
The fourteenth amendment, which was finally 
adopted July 28, 1868, largely expanded the power 
of the federal courts and congress, and for the first 
time authorized the former to declare invalid all 
285 



SOME ETHICAL GAINS 

laws and judicial decisions of the states abridging 
the rights of citizens, or denying them the benefit of 
due process of law. 

This amendment was first called to the attention 
of this court in 1872, in an attack upon the con- 
stitutionality of a law of the state of Louisiana, 
passed in 1869, vesting in a slaughter-house com- 
pany therein named the sole and exclusive privilege 
of conducting and carrying on a live-stock landing 
and slaughter-house business within certain limits 
specified in the act, and requiring all animals in- 
tended for sale and slaughter to be landed at their 
wharves or landing places. While the court in that 
case recognized the fact that the primary object of 
this amendment was to secure to the colored race, 
then recently emancipated, the full enjoyment of 
their freedom, the further fact that it was not re- 
stricted to that purpose was admitted both in the 
prevailing and dissenting opinions, and the validity 
of the act was sustained as a proper police regula- 
tion for the health and comfort of the people. A 
majority of the cases which have since arisen have 
turned, not upon a denial to the colored race of 
rights therein secured to them, but upon alleged 
discriminations in matters entirely outside of the 
political relations of the parties aggrieved. 

These cases may be divided, generally, into two 
classes: First, where a state legislature or a state 
court is alleged to have unjustly discriminated in 
favor of or against a particular individual or class 
of individuals, as distinguished from the rest of the 
community, or denied them the benefit of due 
286 



APPENDIX III 

process of law; second, where the legislature has 
changed its general system of jurisprudence by 
abolishing what had been previously considcrc-il 
necessary to the proper administration of justice, or 
the protection of the individual. 

Among those of the first class, which, for the sake 
of brevity, may be termed "unjust discriminations," 
are those wherein the colored race was alleged to 
have been denied the right of representation upon 
juries, as well as those wherein the state was 
charged wnth oppressing and unduly discriminating 
against persons of the Chinese race, and those 
wherein it was sought, under this amendment, to 
enforce the right of women to suffrage, and tc ad- 
mission to the learned professions. 

To this class is also referable all those cases 
wherein the state courts were alleged to have de- 
nied to particular individuals the benefit of due 
process of law secured to them by the statutes of the 
state, as well as that other large class, to be more 
specifically mentioned hereafter, wherein the state 
legislature was charged with having transcended its 
proper police power in assuming to legislate for the 
health or morals of the community. 

Cases arising under the second class, wherein a 
state has chosen to change its methods of trial to 
meet a popular demand for simpler and more ex- 
peditious forms of administering justice, are much 
less numerous, though of even greater importance, 
than the others. A reference to a few of these 
cases may not be inappropriate in this connection. 
Thus, in Walker vs. Sauvinet, 92 U. S. 90, which 
287 



SOME ETHICAL GAINS 

was an action brought by a colored man against the 
keeper of a coffee house in New Orleans for refus- 
ing him refreshments, in violation of the constitu- 
tion of the state securing to the colored race equal 
rights and privileges in such cases, a statute of the 
state provided that such cases should be tried by 
jury, if either party demanded it, but, if the jury 
failed to agree, the case should be submitted to the 
judge, who should decide the same. It was held 
that a trial by jury was not a privilege or immunity 
of citizenship which the states were forbidden to 
abridge, but the requirement of due process of law 
was met if the trial was had according to the settled 
course of judicial proceedings. "Due process of 
law," said Chief Justice Waite, "is process due ac- 
cording to the law of the land. This process in the 
states is regulated by the law of the state." This 
law was held not to be in conflict with the Constitu- 
tion of the United States. 

In Railway Co. vs. Mackey, 127 U. S. 205, 8 Sup. 
Ct. 1 161, it was said that a statute in Kansas abol- 
ishing the fellow-servant doctrine, as applied to rail- 
way accidents, did not deny to railroads the equal 
protection of the laws, and was not in conflict with 
the fourteenth amendment. The same ruling was 
made with reference to statutes requiring railways 
to erect and maintain fences and cattle guards, and 
make them liable in double the amount of damages 
claimed, for the want of them. 

In Hallinger vs. Davis, 146 U. S. 314, 13 Sup. Ct. 
105, it was held that a state statute conferring upon 
288 



APPENDIX III 

an accused person the right to waive a trial by jury, 
and to elect to be tried by the court, and conferring 
power upon the court to try the accused in such 
case, was not a violation of the due-process clause 
of the fourteenth amendment. 

******** 

An examination of both these classes of cases un- 
der the fourteenth amendment will demonstrate 
that, in passing upon the validity of state legisla- 
tion under that amendment, this court has not failed 
to recognize the fact that the law is, to a certain ex- 
tent, a progressive science; that, in some of the 
states, methods of procedure which, at the time the 
constitution was adopted, were deemed essential to 
the protection and safety of the people, or to the 
liberty of the citizen, have been found to be no 
longer necessary; that restrictions which had for- 
merly been laid upon the conduct of individuals, or 
of classes of individuals, had proved detrimental to 
their interests, while, upon the other hand, certain 
other classes of persons (particularly those engaged 
in dangerous or unhealthful employments), have 
been found to be in need of additional protection. 
Even before the adoption of the constitution, much 
had been done toward mitigating the severity of the 
common law, particularly in the administration of 
its criminal branch. The number of capital crimes 
in this country, at least, had been largely decreased. 
Trial by ordeal and by battle had never existed here, 
and had fallen into disuse in England. The earlier 
practise of the common law, which denied the ben- 
efit of witnesses to a person accused of felony, had 
19 289 



SOME ETHICAL GAINS 

been abolished by statute, though, so far as it de- 
prived him of the assistance of counsel and compul- 
sory process for the attendance of his witnesses, it 
had not been changed in England. But, to the 
credit of her American colonies, let it be said that 
so oppressive a doctrine had never obtained a foot- 
hold there. 

The present century has originated legal reforms 
of no less importance. The whole fabric of special 
pleading, once thought to be necessary to the elimi- 
nation of the real issue between the parties, has 
crumbled to pieces. The ancient tenures of real 
estate have been largely swept away, and land is 
now transferred almost as easily and cheaply as 
personal property. Married women have been 
emancipated from the control of their husbands, 
and placed upon a practical equality with them, 
with respect to the acquisition, possession, and 
transmission of property. Imprisonment for debt 
has been abolished. Exemptions from execution 
have been largely added to, and in most of the states 
homesteads are rendered incapable of seizure and 
sale upon forced process. Witnesses are no longer 
incompetent by reason of interest, even though they 
be parties to the litigation. Indictments have been 
simplified, and an indictment for the most serious of 
crimes is now the simplest of all. In several of the 
states, grand juries, formerly the only safeguard 
against a malicious prosecution, have been largely 
abolished; and in others the rule of unanimity, so 
far as applied to civil cases, has given way to ver- 
dicts rendered by a three-fourths majority. This 
290 



APPENDIX III 

case does not call for an expression of opinion as to 
the wisdom of these changes, or their validity under 
the fourteenth amendment, although the substitu- 
tion of prosecution by information in lieu of indict- 
ment was recognized as valid in Hurtado vs. Cali- 
fornia, no U. S., 516, 4 Sup. Ct., Ill, 292. They 
are mentioned only for the purpose of calling atten- 
tion to the probability that other changes of no less 
importance may be made in the future, and that, 
while the cardinal principles of justice are immu- 
table, the methods by which justice is administered 
are subject to constant fluctuations, and that the 
Constitution of the United States, which is neces- 
sarily and to a large extent inflexible, and exceed- 
ingly difficult of amendment, should not be so con- 
strued as to deprive the states of the power to so 
amend their laws as to make them conform to the 
wishes of the citizens, as they may deem best for the 
public welfare, without bringing them into conflict 
with the supreme law of the land. 

Of course, it is impossible to forecast the charac- 
ter or extent of these changes; but in view of the 
fact that, from the day Magna Charta was signed to 
the present moment, amendments to the structure 
of the law have been made with increasing fre- 
quency, it is impossible to suppose that they will not 
continue, and the law be forced to adapt itself to 
new conditions of society, and particularly to the 
new relations between employers and employees, as 

they arise. 

******** 

The same subject was also elaborately discussed 
291 



SOME ETHICAL GAINS 

by Mr. Justice Matthews in delivering the opinion 
in Hurtado vs. California : "This flexibility and 
capacity for growth is the peculiar boast and excel- 
lence of the common law. . . . The Constitu- 
tion of the United States was ordained, it is true, 
by descendants of Englishmen, who inherited the 
traditions of English law and history; but it was 
made for an undefined and expanding future, and 
for a people gathered and to be gathered from many 
nations, and of many tongues. And, while we take 
just pride in the principles and institutions of com- 
mon law, we are not to forget that, in lands where 
other systems of jurisprudence prevail, the ideas 
and processes of civil justice are also not unknown. 
Due process of law, in spite of the absolutism of 
continental governments, is not alien to that code 
which survived the Roman Empire as the founda- 
tion of modern civilization in Europe, and which 
has given us that fundamental maxim of distribu- 
tive justice, — 'Siium cniqiie tribuere.' There is 
nothing in Magna Charta, rightly construed as a 
broad charter of public right and law, which ought 
to exclude the best ideas of all systems and of every 
age ; and, as it was the characteristic principle of the 
common law to draw its inspiration from every 
fountain of justice, we are not to assume that the 
sources of its supply have been exhausted. On the 
contrary, we should expect that the new and various 
experiences of our own situation and system will 
mold and shape it into new, and not less useful, 
forms." We have seen no reason to doubt the 
soundness of these views. In the future growth of 
292 



APPENDIX III 

the nation, as heretofore, it is not impossible that 
congress may see fit to annex territories whose ju- 
risprudence is that of the civil law. One of the 
considerations moving to such annexation might 
be the very fact that the territory so annexed should 
enter the Union with its traditions, laws and sys- 
tems of administration unchanged. It would be a 
narrow construction of the Constitution to require 
them to abandon these, or to substitute for a system 
which represented the growth of generations of in- 
habitants a jurisprudence with which they had had 
no previous acquaintance or sympathy. 

We do not wish, however, to be understood as 
holding that this power is unlimited. While the 
people of each state may doubtless adopt such sys- 
tems of laws as best conform to their own tradi- 
tions and customs, the people of the entire country 
have laid down in the Constitution of the United 
States certain fundamental principles, to whicii 
each member of the Union is bound to accede as a 
condition of its admission as a state. Thus, the 
United States are bound to guaranty to each state a 
republican form of government, and the tenth sec- 
tion of the first article contains certain other speci- 
fied hmitations upon the power of the several states, 
the object of which was to secure to congress para- 
mount authority with respect to matters of universal 
concern. In addition, the fourteenth amendment 
contains a sweeping provision forbidding the states 
from abridging the privileges and immunities of 
citizens of the United States, and denying them the 
293 



SOME ETHICAL GAINS 

benefit of due process or equal protection of the 
laws. 

This court has never attempted to define with 
precision the words "due process of law," nor is it 
necessary to do so in this case. It is sufficient to 
say that there are certain immutable principles of 
justice, which inhere in the very idea of free gov- 
ernment, which no member of the Union may disre- 
gard, as that no man shall be condemned in his 
person or property without due notice, and an op- 
portunity of being heard in his defense. What shall 
constitute due process of law was perhaps as well 
stated by Mr. Justice Curtis in Murray's Lessees vs. 
Land Co., i8 How. 272, 276, as anywhere. He said: 
"The Constitution contains no description of those 
processes which it was intended to allow or forbid. 
It does not even declare what principles are to be 
applied to ascertain whether it be due process. It 
is manifest that it was not left to the legislative 
power to enact any process which might be devised. 
The article is a restraint on the legislative as well as 
on the executive and judicial powers of the govern- 
ment, and cannot be so construed as to leave con- 
gress free to make any process 'due process of law' 
by its mere will. To what principles, then, are we 
to resort to ascertain whether this process enacted 
by congress is due process? To this the answer 
must be twofold : We must examine the Consti- 
tution itself, to see whether this process be in con- 
flict with any of its provisions. If not found to be 
so, we must look to those settled usages and modes 
of proceeding existing in the common and statute 
294 



APPENDIX III 

law of England, before the emigration of our an- 
cestors, and which are shown not to have been uii- 
suited to their civil and political condition, by hav- 
ing been acted on by them after the settlement of 
this country." 

It was said by Air. Justice Miller, in delivering 
the opinion of this court in Davidson vs. New Or- 
leans, 96 U. S. 97, that the words "law of the land," 
as used in Magna Charta, implied a conformity with 
the "ancient and customary laws of the English 
people," and that it was wiser to ascertain their 
intent and application by the "gradual process of 
judicial inclusion and exclusion as the cases pre- 
sented for decision shall require, with the reasoning 
on which such decisions may be founded." Recog- 
nizing the difficulty in defining with exactness the 
phrase "due process of law," it is certain that these 
words imply a conformity with natural and inherent 
principles of justice, and forbid that one man's 
property or right to property, shall be taken for the 
benefit of another, or for the benefit of the state, 
without compensation, and that no one shall be con- 
demned in his person or property without an oppor- 
tunity of being heard in his own defense. 

As the possession of property, of which a person 
cannot be deprived, doubtless implies that such 
property may be acquired, it is safe to say that a 
state law which undertakes to deprive any class of 
persons of the general power to acquire property 
would also be obnoxious to the sam.e provision. In- 
deed, we may go a step further, and say that as 
property can only be legally acquired, as between 
295 



SOME ETHICAL GAINS 

living persons, by contract, a general prohibition 
against entering into contracts with respect to prop- 
erty, or having as their object the acquisition of 
property, would be equally invalid. 

The latest utterance of this court upon this sub- 
ject is contained in the case of Allgeyer vs. Louisi- 
ana, 165 U. S. 578, 591, 17 Sup, Ct. 427, in which it 
was held that an act of Louisiana which prohibited 
individuals within the state from making contracts 
of insurance with corporations doing business in 
New York was a violation of the fourteenth amend- 
ment. In delivering the opinion of the court, Mr, 
Justice Peckham remarked : "In the privilege of 
pursuing an ordinary calling or trade, and of ac- 
quiring, holding, and selling property must be em- 
braced the right to make all proper contracts in re- 
lation thereto; and, although it may be conceded 
that this right to contract in relation to persons or 
property, or to do business within the jurisdiction 
of the state, may be regulated, and sometimes pro- 
hibited, when the contracts or business conflict with 
the policy of the state as contained in its statutes, 
yet the power does not and cannot extend to pro- 
hibiting a citizen from making contracts of the na- 
ture involved in this case, outside of the limits and 
jurisdiction of the state, and which are also to be 
performed outside of such jurisdiction." 

This right of contract, however, is itself subject 
to certain limitations which the state may lawfully 
impose in the exercise of its poHce powers. While 
this power is inherent in all governments, it has 
doubtless been greatly expanded in its application 
296 



APPENDIX III 

during the past century, owing to an enormous in- 
crease in the number of occupations which arc dan- 
gerous or so far detrimental to the health of em- 
ployees as to demand special precautions for their 
well-being and protection, or the safety of adjacent 
property. While this court has held (notably in 
the cases of New Orleans vs. Davidson, 95 U. S. 
465, and Yick Wo vs. Hopkins, 118 U. S. 356, 6 
Sup. Ct. 1064) that the police power cannot be put 
forward as an excuse for oppressive and unjust 
legislation, it may be lawfully resorted to for the 
purpose of preserving the public health, safety, or 
morals, or the abatement of public nuisances, and a 
large discretion "is necessarily vested in the legisla- 
ture, to determine, not only what the interests of the 
public require, but what measures are necessary for 
the protection of such interests." Lawton vs. 
Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499. 

The extent and limitations upon this power are 
admirably stated by Chief Justice Shaw in the fol- 
lowing extract from his opinion in ^Massachusetts 
vs. Alger, 7 Cush. 84. 

"We think it a settled policy, growing out of the 
nature of well-ordered civil society, that every 
holder of property, however absolute and unquali- 
fied his title, holds it under the implied liability that 
its use may be so regulated that it shall not be in- 
jurious to the equal enjoyment of others having an 
equal right to the enjoyment of their property, nor 
injurious to the rights of the community. All prop- 
erty in this commonwealth, as well in the interior 
as that bordering on the tide waters, is derived di- 
297 



SOME ETHICAL GAINS 

rectly or indirectly from the government, and held 
subject to those general regulations which are neces- 
sary to the common good and general welfare. 
Rights of property, like all other social and con- 
ventional rights, are subject to such reasonable limi- 
tation in their enjoyment as will prevent them from 
being injurious, and to such reasonable restraints 
and regulations by law as the legislature, under the 
government and controlling power vested in them 
by the Constitution, may think necessary and ex- 
pedient." 

This power, legitimately exercised, can neither be 
limited by contract nor bartered away by legislation. 

While this power is necessarily inherent in every 
form of government, it was, prior to the adoption of 
the constitution, but sparingly used in this country. 
As we were then almost purely an agricultural peo- 
ple, the occasion for any special protection of a par- 
ticular class did not exist. Certain profitable em- 
ployments, such as lotteries and the sale of intoxi- 
cating liquors, which were then considered to be 
legitimate, have since fallen under the ban of public 
opinion, and are now either altogether prohibited, 
or made subject to stringent police regulations. 
The power to do this has been repeatedly affirmed 
by this court. 

While the business of mining coal and manufac- 
turing iron began in Pennsylvania as early as 1716, 
and in Virginia, North Carolina, and Massachusetts 
even earlier than this, both mining and manufac- 
turing were carried on in such a limited way, and 
by such primitive methods, that no special laws were 



APPENDIX I II 

considered necessary, prior to the adoption of the 
Constitution, for the protection of the operatives; 
but, in the vast proportions \vhich tliese industries 
have since assumed, it has been found that they can 
no longer be carried on, with due regard to the 
safety and health of those engaged in them, without 
special protection against the dangers necessarily 
incident to these employments. In consequence of 
this, laws have been enacted in most of the states 
designed to meet these exigencies, and to secure the 
safety of persons peculiarly exposed to these dan- 
gers. Within this general category are ordinances 
providing for fire escapes for hotels, theaters, fac- 
tories and other large buildings ; a municipal inspec- 
tion of boilers; and appliances designed to secure 
passengers upon railways and steamboats against 
the dangers necessarily incident to these methods 
of transportation. In states where manufacturing 
is carried on to a large extent, provision is made for 
the protection of dangerous machinery against acci- 
dental contact; for the cleanliness and ventilation 
of working rooms; for the guarding of well holes, 
stairways, elevator shafts ; and for the employment 
of sanitary appliances. In others, where mining is 
the principal industry, special provision is made for 
the shoring up of dangerous walls ; for ventilation 
shafts, bore holes, escapement shafts, means of'sig- 
naling the surface; for the supply of fresh air, and 
the elimination, as far as possible, of dangerous 
gases; for safe means of hoisting and lowering 
cages ; for a limitation upon the number of persons 
permitted to enter a cage ; that cages shall be cov- 
299 



SOME ETHICAL GAINS 

ered; and that there shall be fences and gates 
around the top of shafts, besides other similar pre- 
cautions. 

These statutes have been repeatedly enforced by 
the courts of the several states ; their validity as- 
sumed; and, so far as we are informed, they have 
been uniformly held to be constitutional. 

In Daniels vs. Hilgard, yy 111. 640, it was held 
that the legislature had power, under the Constitu- 
tion, to establish reasonable police regulations for 
the operating of mines and collieries, and that an act 
providing for the health and safety of persons em- 
ployed in coal mines, which required the owner or 
agent of every coal mine or colliery employing ten 
men or more to make or cause to be made an ac- 
curate map or plan of the workings of such coal 
mine or colliery, was not unconstitutional, and that 
the question whether certain requirements are a part 
of a system of police regulations adopted to aid in 
the protection of life and health was properly one of 
legislative determination, and that a court should 
not lightly interfere with such determination, unless 
the legislature had manifestly transcended its 
province. 

In Pennsylvania vs. Bonnell, 8 Phila. 534, a law 
providing for the ventilation of coal mines, for 
speaking tubes, and the protection of cages, was 
held to be constitutional, and subject to strict en- 
forcement. 

But, if it be within the power of a legislature to 
adopt such means for the protection of the lives of 
its citizens, it is difficult to see why precautions may 
300 



APPENDIX III 

not also be adopted for the protection of their 
health and morals. It is as much for the interest of 
the state that the public health should be preserved 
as that life should be made secure. With tiiis end 
in view, quarantine laws have been enacted in most, 
if not all, of the states ; insane asylums, public hos- 
pitals, and institutions for the care and education of 
the blind established; and special measures taken 
for the exclusion of infected cattle, rags, and de- 
cayed fruit. In other states laws have been enacted 
limiting the hours during which women and chil- 
dren shall be employed in factories ; and while their 
constitutionality, at least as applied to women, has 
been doubted in some of the states, they have been 
generally upheld. Thus, in the case of Com. z's. 
Hamilton I\Ifg. Co., 120 Mass. 383, it was held that 
a statute prohibiting the employment of all persons 
under the age of eighteen, and of all women labor- 
ing in any manufacturing establishment more than 
sixty hours per week, violates no contract of the 
commonwealth implied in the granting of a charter 
to a manufacturing company, nor any right reserved 
under the constitution to any individual citizen, and 
may be maintained as a health or police regulation. 
Upon the principles above stated, we think the 
act in question may be sustained as a valid exercise 
of the police power of the state. The enactment 
does not profess to limit the hours of all workmen, 
but merely those who are employed in underground 
mines, or in the smelting, reduction, or refining of 
ores or metals. These employments, when too long 
pursued, the legislature has judged to be detri- 
301 



SOME ETHICAL GAINS 

mental to the health of the employees ; and, so long 
as there are reasonable grounds for believing that 
this is so, its decision upon this subject cannot be 
reviewed by the federal courts. 

While the general experience of mankind may 
justify us in believing that men may engage in or- 
dinary employments more than eight hours per day 
without injury to their health, it does not follow 
that labor for the same length of time is innocuous 
when carried on beneath the surface of the earth, 
where the operative is deprived of fresh air and sun- 
light, and is frequently subjected to foul atmosphere 
and a very high temperature, or to the influence of 
noxious gases generated by the processes of refining 
or smelting. 

We concur in the following observations of the 
Supreme Court of Utah in this connection : 

"The conditions with respect to health of laborers 
in underground mines doubtless differ from those 
in which they labor in smelters and other reduction 
works on the surface. Unquestionably the atmos- 
phere and other conditions in mines and reduction 
works differ. Poisonous gases, dust, and impal- 
pable substances arise and float in the air in stamp 
mills, smelters, and other works in which ores con- 
taining metals, combined with arsenic or other poi- 
sonous elements or agencies, are treated, reduced, 
and refined, and there can be no doubt that pro- 
longed effort, day after day, subject to such condi- 
tions and agencies, will produce morbid, noxious, 
and often deadly effects in the human system. Some 
organisms and systems will resist and endure such 
30a 



APPENDIX III 

conditions and effects longer than others. It may 
be said that labor in such conditions must be per- 
formed. Granting that, the period of labor each 
day should be of a reasonable length. Twelve 
hours per day would be less injurious than fourteen, 
ten than twelve, and eight than ten. The legisla- 
ture has named eight. Such a period was deemed 
reasonable. . . . The law in question is con- 
fined to the protection of that class of people en- 
gaged in labor in underground mines, and in smelt- 
ers and other works wherein ores are reduced and 
refined. This law applies only to the classes sub- 
jected by their employment to the peculiar condi- 
tions and effects attending underground mining and 
work in smelters, and other works for the reduction 
and refining of ores. Therefore it is not necessary 
to discuss or decide whether the legislature can fix 
the hours of labor in other employments. Though 
reasonable doubts may exist as to the power of the 
legislature to pass a law, or as to whether the law 
is calculated or adapted to promote the health, 
safety, or comfort of the people, or to secure good 
order or promote the general welfare, we must re- 
solve them in favor of the right of that department 
of government." 46 Pac. 1105. 

The legislature has also recognized the fact, 
which the experience of legislators in many states 
has corroborated, that the proprietors of these es- 
tablishments and their operatives do not stand upon 
an equality, and that their interests are, to a certain 
extent, conflicting. The former naturally desire to 
obtain as much labor as possible from their em- 
303 



SOME ETHICAL GAINS 

ployees, while the latter are often induced by the 
fear of discharge to conform to regulations which 
their judgment, fairly exercised, would pronounce 
to be detrimental to their health or strength. In 
other words, the proprietors lay down the rules, and 
the laborers are practically constrained to obey 
them. In such cases self-interest is often an unsafe 
guide, and the legislature may properly interpose its 
authority. 

It may not be improper to suggest in this con- 
nection that although the prosecution in this case 
was against the employer of labor, who apparently, 
under the statute, is the only one liable, his defense 
is not so much that his right to contract has been 
infringed upon, but that the act works a peculiar 
hardship to his employees, whose right to labor as 
long as they please is alleged to be thereby violated. 
The argument would certainly come with better 
grace and greater cogency from the latter class. 
But the fact that both parties are of full age, and 
competent to contract, does not necessarily deprive 
the state of the power to interfere, where the parties 
do not stand upon an equality, or where the public 
health demands that one party to the contract shall 
be protected against himself. "The state still re- 
tains an interest in his welfare, however reckless he 
may be. The whole is no greater than the sum of 
all the parts, and when the individual health, safety, 
and welfare are sacrificed or neglected, the state 
must suffer." 

We have no disposition to criticise the many au- 
thorities which hold that state statutes restricting 

304 



APPENDIX III 

the hours of labor are unconstitutional. Indeed, \vc 
are not called upon to express an oi)inion upon this 
subject. It is sufficient to say of them that they 
have no application to cases where the legislature 
had adjudged that a limitation is necessary for the 
preservation of the health of employees, and there 
are reasonable grounds for believing that such de- 
termination is supported by the facts. The question 
in each case is whether the legislature has adopted 
the statute in exercise of a reasonable discretion, or 
whether its action be a mere excuse for an unjust 
discrimination, or the oppression or spoliation of a 
particular class. . . . 

We are of opinion that the act in question was a 
valid exercise of police power of the state, and the 
judgments of the Supreme Court of Utah are there- 
fore affirmed. 

Mr. Justice Brewer and Mr. Justice Peckham dis- 
sented. 



30s 



APPENDIX IV 

IN RE JACOBS 
(Court of Appeals of New York. January 20, 1885.) 

Constitutional Law — Public Health — Police 
Regulation 

The act entitled "An act to improve the public 
health, by prohibiting the manufacture of cigars and 
preparation of tobacco in any form, in tenement 
houses, in certain cases," (chap. 272, Laws 1884), 
held not within the police power, and unconsti- 
tutional. 

When a health law is challenged as unconstitu- 
tional on the ground that it arbitrarily interferes with 
personal liberty and private property without due 
process of law, the courts must be able to see that 
it has, at least in fact, some relation to the public 
health, and that the public health is the end actually 
aimed at, and that it is appropriate and adapted to that 
end. Under the guise of police regulations, personal 
rights and private property cannot be arbitrarily in- 
vaded, and the determination of the legislature is not 
final or conclusive. 

(Argued December 17, 1884; decided January 20, 
1885.) 

Appeal from an order of the General Term of the 
Supreme Court, first department, reversing an order, 
306 



APPENDIX IV 

made at Special Term, which disniisscd the writ of 
habeas corpus obtained by relator, the respondent 
herein, to inquire into the cause of his detention. 

The essential facts appear in the opinion. Cases 
cited by counsel omitted. 

Opinion of the Court, per Earl, J. 

The relator Jacobs was arrested on the 14th dav of 
May, 1884, on a warrant issued by a police justice 
in the city of New York under the act chapter 272 
of the Laws of 1884, passed May 12, entitled "An 
act to improve the public health by prohibiting the 
manufacture of cigars and preparation of tobacco in 
any form in tenement-houses in certain cases, and 
regulating the use of tenement-houses in certain 
cases." On the evidence of the complainant he was 
by the justice committed for trial, and thereafter 
upon his petition, a justice of the Supreme Court 
granted a writ of habeas corpus, to which a return 
was made, and upon the hearing thereon the justice 
made an order dismissing the writ and remanding 
him to prison. From that order he appealed to the 
General Term of the Supreme Court, which reversed 
the order and discharged him from prison, on the 
ground that the act under which he was arrested was 
unconstitutional and therefore void. The district 
attorney on behalf of the people then appealed to this 
court, and the sole question for our determination is, 
whether the act of 1884, creating the offense for 
which the relator was arrested, was a constitutional 
exercise of legislative power. 

The facts as they appeared before the police jus- 
tice were as follows : The relator at the time of his 
307 



SOME ETHICAL GAINS 

arrest lived with his wife and two children in a tene- 
ment-house in the city of New York in which three 
other families also lived. There were four floors in 
the house, and seven rooms on each floor, and each 
floor was occupied by one family living independ- 
ently of the others, and doing their cooking in one 
of the rooms so occupied. The relator at the time 
of his arrest was engaged in one of his rooms in 
preparing tobacco and making cigars, but there was 
no smell of tobacco in any part of the house except 
the room where he was thus engaged. 

These facts showed a violation of the provisions of 
the act which took effect immediately upon its pas- 
sage and the material portions of which are as fol- 
lows : "Section i. The manufacture of cigars or 
preparation of tobacco in any form on any floor, or 
in any part of any floor, in any tenement-house is 
hereby prohibited, if such floor or any part of such 
floor is by any person occupied as a home or resi- 
dence for the purpose of living, sleeping, cooking or 
doing any household work therein. Section 2. Any 
house, building or portion thereof, occupied as the 
home or residence of more than three families living 
independently of one another, and doing their cook- 
ing upon the premises, is a tenement-house within 
the meaning of this act. vSection 3. The first floor 
of said tenement house on which there is a store for 
the sale of cigars and tobacco shall be exempt from 
the prohibition provided in section one of this act. 
Section 5. Every person who shall be found guilty 
of a violation of this act, or of having caused another 
to commit such violation, shall be deemed guilty of 
308 



APPENDIX IV 

a misdemeanor, and shall be punished for every of- 
fense by a fine of not less than ten dollars and not 
more than one hundred dollars or by imprisonment 
for not less than ten days and not more than six 
months, or both such fine and imprisonment. Sec- 
tion 6. This act shall apply only to cities having over 
five hundred thousand inhabitants." 

What does this act attempt to do? In form, it 
makes it a crime for a cigarmaker in New York and 
Brooklyn, the only cities in the State having a popu- 
lation exceeding 500,000, to carry on a perfectly law- 
ful trade in his own home. Whether he owns the 
tenement-house or has hired a room therein for the 
purpose of prosecuting his trade, he cannot manufac- 
ture therein his own tobacco into cigars for his own 
use or for sale, and he will become a criminal for 
doing that which is perfectly lawful outside of the 
two cities named — everywhere else, so far as we are 
able to learn, in the whole world. He must either 
abandon th^ trade by which he earns a livelihood for 
himself and family, or, if able, procure a room else- 
where, or hire himself out to one who has a room 
upon such terms as, under the fierce competition of 
trade and the inexorable laws of supply and demand, 
he may be able to obtain from his employer. Pie 
may choose to do his work where he can have the 
supervision of his family and their help, and such 
choice is denied him. He may choose to work for 
himself rather than for a taskmaster, and he is left 
without freedom of choice. He may desire the ad- 
vantage of cheap production in consequence of his 
cheap rent and family help, and of this he is deprived. 
309 



SOME ETHICAL GAINS 

In the unceasing struggle for success and existence 
which pervades all societies of men, he may be de- 
prived of that which will enable him to maintain his 
hold, and to survive. He may go to a tenement- 
house, and finding no one living, sleeping, cooking 
or doing any household work upon one of the floors, 
hire a room upon such floor to carry on his trade, and 
afterward some one may commence to sleep or to do 
some household work upon such floor, even without 
his knowledge, and he at once becomes a criminal in 
consequence of another's act. He may go to a tene- 
ment-house, and finding but two families living 
therein independently, hire a room, and afterward by 
subdivision of the families, or a change in their mode 
of life, or in some other way, a fourth family begins 
to live therein independently, and thus he may be- 
come a criminal without the knowledge, or possibly 
the means of knowledge that he was violating any 
law. It is, therefore, plain that this law interferes 
with the profitable and free use of his property by 
the owner or lessee of a tenement-house who is a 
cigarmaker, and trammels him in the application of 
his industry and the disposition of his labor, and thus, 
in a strictly legitimate sense, it arbitrarily deprives 
him of his property and of some portion of his per- 
sonal liberty. 

The constitutional guaranty that no person shall 
be deprived of his property without due process of 
law may be violated without the physical taking of 
property for public or private use. Property may be 
destroyed, or its value may be annihilated; it is 
owned and kept for some useful purpose and it has 
310 



APPENDIX IV 

no value unless it can he used. Its capability for 
enjoyment and adaptability to some use are essential 
characteristics and attributes without which property 
cannot be conceived; and hence any law which de- 
stroys it or its value, or takes away any of its essen- 
tial attributes, deprives the owner of his property. 

The constitutional guaranty would be of little 
worth, if the legislature could, without compensation, 
destroy property or its value, deprive the owner of 
its use, deny him the right to live in his own house, 
or to work at any lawful trade therein. If the legis- 
lature has the power under the Constitution to pro- 
hibit the prosecution of one lawful trade in a tene- 
ment-house, then it may prevent the prosecution of 
all trades therein. "Questions of power," says Chief 
Justice Marshall in Brown vs. State of Maryland (i2 
Wheat. 419), "do not depend upon the degree to 
which it may be exercised. If it may be exercised 
at all it must be exercised at will of those in whose 
hands it is placed." Blackstonc in his classification 
of fundamental rights says : "The third absolute 
right inherent in every Englishman is that of prop- 
erty which consists in the free use, enjoyment and 
disposal of all his acquisitions without any control or 
diminution, save only by the law of the land." (i 
Com. 138), in Pumpelly fs. Green Bay Co. ( 13 Wall. 
166, 177), Miller, J., says: "There may be such 
serious interruption to the common and necessary 
use of property as will be equivalent to a taking 
within the meaning of the Constitution." In W'yne- 
hamer vs. People (13 N. Y. 378. 398), Comstnck. 
J., says: "When a law annihilates the value of 
311 



SOME ETHICAL GAINS 

property and strips it of its attributes, by which alone 
it is distinguished as property, the owner is deprived 
of it according to the plainest interpretation, and cer- 
tainly within the constitutional provision intended 
expressly to shield personal rights from the exercise 
of arbitrary power." In People vs. Otis (90 N. Y. 
48), Andrews, J., says: "Depriving an owner of 
property of one of its attributes is depriving him of 
his property within the constitutional provision." 

So, too, one may be deprived of his liberty and his 
constitutional rights thereto violated without the 
actual imprisonment or restraint of his person. Lib- 
erty, in its broad sense as understood in this country, 
means the right, not only of freedom from actual 
servitude, imprisonment or restraint, but the right of 
one to use his faculties in all lawful ways, to live and 
work where he will, to earn his livelihood in any 
lawful calling, and to pursue any lawful trade or 
avocation. All laws, therefore, which impair or 
trammel these rights, which limit one in his choice 
of a trade or profession, or confine him to work or 
live in a specified locality, or exclude him from his 
own house, or restrain his otherwise lawful move- 
ments (except as such laws may be passed in the 
exercise by the legislature of the police power, which 
will be noticed later), are infringements upon his 
fundamental rights of liberty, which are under con- 
stitutional protection. In Butchers' Union Co. vs. 
Crescent City Co. (iii U. S. 746), Field, J., says: 
That among the inalienable rights as proclaimed in 
the Declaration of Independence "is the right of men 
to pursue any lawful business or vocation in any 
312 



APPENDIX IV 

manner not inconsistent with the equal rip^hts of 
others, which may increase their property or develop 
their faculties, so as to give them their highest enjoy- 
ment. The common business and callings of life, 
the ordinary trades and pursuits which are innocent 
in themselves, and have been followed in all com- 
munities from time immemorial, must, therefore, be 
free in this country to all alike upon the same terms. 
The right to pursue them without let or hindrance, 
except that which is applied to all persons of the 
same age, sex and condition, is a distinguishing priv- 
ilege of citizens of the United States, and an essen- 
tial element of that freedom which they claim as their 
birthright." In the same case Bradley, J., says : "I 
hold that the liberty of pursuit, the right to follow 
any of the ordinary callings of life, is one of the 
privileges of a citizen of the United States," of which 
he cannot be deprived without invading his right to 
liberty within the meaning of the Constitution. In 
Live Stock, etc.. Association vs. Crescent City, etc., 
Company (i Abb. (U. S.) 388, 398), the learned 
presiding justice says: 'There is no more sacred 
right of citizenship than the right to pursue unmo- 
lested a lawful employment in a lawful manner. It 
is nothing more nor less than the sacred right of 
labor." In Wynehamer vs. People, Johnson, J., 
says: 'That a law which should make it a crime 
for men either to live in, or rent or sell their houses," 
would violate the constitutional guaranty of personal 
liberty. In Bertholf vs. O'Reilly (74 N. Y. 509, 
515), Andrews, J., says: That one could "bo de- 
prived of his liberty in a constitutional sense without 
313 



SOME ETHICAL GAINS 

putting his person in confinement," and that a man's 
right to Hberty included "the right to exercise his 
faculties, and to follow a lawful avocation for the 
support of life." 

But the claim is made that the legislature could 
pass this act in the exercise of the police power which 
every sovereign state possesses. That power is very 
broad and comprehensive, and is exercised to pro- 
mote the health, comfort, safety and welfare of so- 
ciety. Its exercise in extreme cases is frequently 
justified by the maxim sahts popuH snprema lex est. 
It is used to regulate the use of property by enforcing 
the maxim sic utere tuo, ut aliemim non loedas. 
Under it the conduct of an individual and the use of 
property may be regulated so as to interfere, to some 
extent, with the freedom of the one and the enjoy- 
ment of the other; and in cases of great emergency 
engendering overruling necessity, property may be 
taken or destroyed without compensation, and with- 
out what is commonly called due process of law. 
The limit of the power cannot be accurately defined, 
and the courts have not been able or willing definitely 
to circumscribe it. But the power, however broad 
and extensive, is not above the Constitution. When 
it speaks, its voice must be heeded. It furnishes the 
supreme law, the guide for the conduct of legislators, 
judges and private persons, and so far as it imposes 
restraints, the police power must be exercised in sub- 
ordination thereto. Judge Cooley, speaking of the 
regulation by the legislature under the police power 
of the conduct of corporations holding inviolable 
charters, says : "The limit to the exercise of the 
314 



APPENDIX IV 

police power in these cases must be this : the regula- 
tions must have reference to the comfort, safety and 
welfare of society ; they must not be in conflict with 
any of the provisions of the charter, and they must 
not, under pretense of regulation, take from the cor- 
poration any of the essential rights and privileges 
which the charter confers. In short, they must be 
police regulations, in fact, and not amendments of 
the charter in curtailment of the corporate franchise." 
(Const, Lim. (4th ed.) 719.) In Potter's Dwarris 
on Statutes, 458, it is said that "the limit to the exer- 
cise of the police power can only be this ; the legisla- 
tion must have reference to the comfort, the safety or 
the welfare of society ; it must not be in conflict with 
the provisions of the Constitution." In Common- 
wealth z's. Alger (7 Cush. 53, 84), Shaw, Ch. J., 
says, that the police power "was vested in the legis- 
lature, by the Constitution, to make, ordain and es- 
tablish all manner of wholesome and reasonable laws, 
statutes and ordinances, either with penalties or with- 
out, not repugnant to the Constitution, as they shall 
judge to be for the good and welfare of the Common- 
wealth and of the subjects of the same. It is much 
easier to perceive and realize the existence and 
sources of the power than to mark its limitations or 
prescribe limits to its exercise." In Austin z's. Mur- 
ray (16 Pick. 121, 126), it is said : The law will not 
allow the rights of property to be invaded under the 
guise of a police regulation for tlic promotion of 
health, when it is manifest that such is not the object 
and purpose of the regulation." In Watertown rs. 
Mayo (109 Mass. 315, 319)- Colt, J., says: "The 
315 



SOME ETHICAL GAINS 

law will not allow rights of property to be invaded 
under the guise of a police regulation for the preser- 
vation of health or protection against a threatened 
nuisance; and when it appears that such is not the 
real object and purpose of the regulation, courts will 
interfere to protect the rights of the citizen." In the 
Slaughter-house cases (i6 Wall. 36, 87), Field, J., 
says : "All sorts of restrictions and burdens are im- 
posed under the police power, and when these are not 
in conflict with any constitutional prohibitions or 
fundamental principles, they cannot be successfully 

assailed in a judicial tribunal But under the 

pretense of prescribing a police regulation, the State 
cannot be permitted to encroach upon any of the just 
rights of the citizen which the Constitution intended 
to secure against abridgment." In Coe vs. Schultze 
(47 Barb. 64), a learned judge speaking of the con- 
stitutional limitations upon the police power says : "I 
am not willing to concede that the legislature can 
constitutionally declare an act or thing to be a com- 
mon nuisance, which palpably, according to our 
present experience or information, is not and cannot 
be under any circumstances a common nuisance, by 
the common-law definitions or common-law de- 
cisions. I am not willing to conclude that the legis- 
lature can constitutionally declare or authorize any 
sanitary commission or board to declare the keeping 
or the use, in any way, of sugar or vinegar to be a 
common nuisance, because the one is sweet and the 
other sour, or for any other reason. By such an un- 
limited power it is easy to see that any citizen might 
be deprived of his property without compensation, 
316 



APPENDIX IV 

and without any colorable pretext that the piihlic 
good required such deprivation." (See, also, in the 
Matter of Cheesebrough, 78 N. Y. 232.) 

These citations are sufficient to show that the police 
power is not without limitations, and that in its exer- 
cise the legislature nmst respect the great funda- 
mental rights guaranteed by the Constitution. If 
this were otherwise, the power of the legislature 
would be practically without limitation. In the as- 
sumed exercise of the police power in the interest of 
the health, the welfare or the safety of the public, 
every right of the citizen might be invaded and every 
constitutional barrier swept away. 

Generally it is for the legislature to determine what 
laws and regulations are needed to protect the public 
health and secure the public comfort and safety, and 
while its measures are calculated, intended, conven- 
ient and appropriate to accomplish these ends, the 
exercise of its discretion is not subject to review by 
the courts. But they must have some relation to 
these ends. Under the mere guise of police regula- 
tions, personal rights and private property cannot be 
arbitrarily invaded, and the determination of the 
legislature is not final or conclusive. If it passes an 
act ostensibly for the public health, and thereby de- 
stroys or takes away the property of a citizen, or 
interferes with his personal liberty, then it is for the 
courts to scrutinize the act and see whether it really 
relates to and is convenient and appropriate to pro- 
mote the public health. It matters not that the legis- 
lature may in the title to the act, or in its body, de- 
clare that it is intended for the improvement of the 
Z^7 



SOME ETHICAL GAINS 

public health. Such a declaration does not conclude 
the courts, and they must yet determine the fact de- 
clared and enforce the supreme law. In Matter of 
Ryers (72 N. Y. i), Folger, J., speaking of the 
drainage Act then under consideration, says : "The 
leigslature has done no more than the Constitution 
permitted in providing in general terms a way for 
the promotion and preservation of the public health. 
It is still for the judiciary to see to it that each oc- 
casion presents the necessity for the work, and that 
the purpose to be reached is public." In Town of 
Lake View vs. Rose Hill Co. (70 111. 191), the court, 
speaking of the police power, says : "As a general 
proposition, it may be stated that it is in the province 
of the lawmaking power to determine whether the 
exigencies exist calling into exercise this power. 
What are the subjects of its exercise is clearly a 
judicial question." Even the power of taxation, 
which is one of the broadest possessed by the legis- 
lature, is not without its limitations, and its action in 
reference thereto may be scrutinized by the courts ; 
and that which is done under the guise of taxation 
may be condemned as sheer spoliation and confisca- 
tion without due process of law. (Weismer vs. 
Village of Douglas, 64 N. Y. 91 ; Stuart vs. Palmer^ 
74 id. 183 ; People vs. Equitable Trust Co., 96 id. 
387.) The legislature may condemn or authorize the 
condemnation of private property for public use, and 
it may, in the exercise of its discretion, determine 
when and upon what property the power of eminent 
domain may be exercised ; but its exercise is not be- 
yond the reach of judicial inquiry. Whether or not 
318 



APPENDIX IV 

a use is a public one, which will justify the exercise 
of the power, is a judicial question. It ma)- be dilTi- 
cult sometimes to determine whether a use is public 
or private. Although the legislature may declare it 
to be public, that does not necessarily determine its 
character ; it must in fact be public, and if it be not, 
no legislative fiat can make it so, and any owner of 
property attempted to be taken for a use really pri- 
vate can invoke the aid of the courts to protect his 
property rights against invasion. (Rockwell vs. 
Nearing, 35 N. Y. 302 ; ]\Iatter of Townsend, 39 id. 
171 ; Matter of Deansville Cemetery Association, 66 
id. 569; Matter of Eureka Basin Warehouse and 
Manufacturing Co., 96 id. 42.) The general gov- 
ernment is one of limited powers particularly speci- 
fied in the Federal Constitution. But in addition to 
the powers granted, it is provided in the Constitu- 
tion that congress shall have power "to make all laws 
which shall be necessary and proper for carrying into 
execution the foregoing powers." Under this pro- 
vision, congress is not the final judge of what is 
"necessary and proper," but its laws must have a 
legitimate end in view, must be within the scope of 
the Constitution, must be appropriate and plainly 
adapted to that end, and not prohibited by, but con- 
sistent with, the letter and spirit of the Constitution ; 
and whether the laws passed under the implied 
powers contained in the section cited are of the char- 
acter mentioned and thus justified, is always open to 
judicial inquiry. (McCulloch 7'S. Maryland, 4 
Wheat. 316, 421; Hepburn z'S. Griswold, 8 Wall, 
603 ; Legal Tender Cases, li'id. 457; no U. S. 421.) 
319 



SOME ETHICAL GAINS 

If it were for congress to determine when these im- 
plied or incidental powers should be exercised, its 
powers would be without any restraint, and instead 
of being a body with limited powers, it would, in its 
own discretion, have general and unlimited power of 
legislation, "Whatever meaning," says Mr. Madi- 
son (i Ann. of Cong. 1848), "the clause of the Con- 
stitution conferring all necessary and proper means 
to carry into effect the enumerated powers may have, 
none could be admitted that would give an unlimited 
discretion to congress," And in Marbury vs. Madi- 
son (i Cranch, 137), Chief Justice Marshall says: 
"To what purpose are limitations committed to writ- 
ing, if those limits may at any time be passed by those 
intended to be restrained? The distinction between 
a government with limited and unlimited powers is 
abolished if those limits do not confine the persons 
on whom they are imposed." These citations are apt 
to show how the police power may, and how it ought 
not to be exercised, and how far its exercise is sub- 
ject to judicial inquiry. A law enacted in the exer- 
cise of the police power must in fact be a police law. 
If it be a law for the promotion of the public health, 
it must be a health law, having some relation to the 
public health. 

We will now once more recur to the law under con- 
sideration. It does not deal with tenement-houses 
as such ; it does not regulate the number of persons 
who may live in any one of them, or be crowded into 
one room, nor does it deal with the mode of their 
construction for the purpose of securing the health 
and safety of their occupants or of the public gener- 
320 



APPENDIX IV 

ally. It deals mainly with the preparation of tobacco 
and the manufacture of cigars, and its purpose ob- 
viously was to regulate them. Wc must take ju- 
dicial notice of the nature and qualities of tobacco. 
It has been in general use among civilized men for 
more than two centuries. It is used in some form 
by a majority of the men in this State, by the good 
and bad, learned and unlearned, the rich and poor. 
Its manufacture into cigars is permitted without any 
hindrance, except for revenue purposes, in all civ- 
ilized lands. It has never been said, so far as we 
can learn, and it was not affirmed even on the argu- 
ment before us, that its preparation and manufacture 
into cigars were dangerous to the public health. We 
are not aware, and are not able to learn, that tobacco 
is even injurious to the health of those who deal in 
it, or are engaged in its production or manufacture. 
We certainly know enough about it to be sure that 
its manipulation in one room can produce no harm to 
the health of the occupants of other rooms in the 
same house. It was proved in this case that the odor 
of the tobacco did not extend to any of the other 
rooms of the tenement-house. Mr. Secretary McCul- 
loch in his late annual report to Congress, in which 
he recommends the removal of the internal tax from 
tobacco that it might thus be placed upon a footing 
with other agricultural products, says : "An article 
which is so generally used and which adds so much 
to the comfort of the large numbers of our population 
who earn their living by manual labor, cannot prop- 
erly be considered a luxury." To justify this law it 
would not be sufficient that the use of tobacco may 

21 321 



SOME ETHICAL GAINS 

be injurious to some persons, or that its manipulation 
may be injurious to those who are engaged in its 
preparation and manufacture; but it would have to 
be injurious to the public health. This law was not 
intended to protect the health of those engaged in 
cigarmaking, as they are allowed to manufacture 
cigars everywhere except in the forbidden tenement- 
houses. It cannot be perceived how the cigarmaker 
is to be improved in his health or his morals by forc- 
ing him from his home and its hallowed associations 
and beneficent influences, to ply his trade elsewhere. 
It was not intended to protect the health of that por- 
tion of the public not residing in the forbidden tene- 
ment-houses, as cigars are allowed to be manufac- 
tured in private houses, in large factories and shops 
in the too crowded cities, and in all other parts of 
the State. What possible relation can cigarmaking 
in any building have to the health of the general 
public? Nor was it intended to improve or protect 
the health of the occupants of tenement-houses. If 
there are but three families in the tenement-house, 
however numerous and gregarious their members 
may be, the manufacture is not forbidden; and it 
matters not how large the number of the occupants 
may be if they are not divided into more than three 
families living and cooking independently. If a 
store is kept for the sale of cigars on the first floor 
of one of these houses, and thus more tobacco is kept 
there than otherwise would be, and the baneful influ- 
ence of tobacco, if any, is thus increased, that floor, 
however numerous its occupants, or the occupants of 
the house, is exempt from the operation of the act. 
322 



APPENDIX IV 

What possible relation to tiie health of the occupants 
of a large tenement-house could cigarmaking in one 
of its remote rooms have? If the legislature had in 
mind the protection of the occupants of tenement- 
houses, why was the act confined in its operation to 
the two cities only? It is plain that this is not a 
health law, and that it has no relation whatever to 
the public health. Under the guise of promoting 
the public health the legislature might as well have 
banished cigarmaking from all the cities of the State, 
or confined it to a single city or town, or have placed 
under a similar ban the trade of a baker, of a tailor, 
of a shoemaker, of a woodcarver, or of any other of 
the innocuous trades carried on by artisans in their 
own homes. The power would have been the same, 
and its exercise, so far as it concerns fundamental, 
constitutional rights, could have been justified by the 
same arguments. Such legislation may invade one 
class of rights to-day and another to-morrow, and if 
it can be sanctioned under the Constitution, while 
far removed in time we will not be far away in prac- 
tical statesmanship from those ages when govern- 
mental prefects supervised the building of houses, 
the rearing of cattle, the sowing of seed and the reap- 
ing of grain, and governmental ordinances regulated 
the movements and labor of artisans, the rate of 
wages, the price of food, the diet and clothing of the 
people, and a large range of other affairs long since 
in all civilized lands regarded as outside of govern- 
mental functions. Such governmental interferences 
disturb the normal adjustments of the social faliric, 
and usually derange the delicate and complicated ma- 
323 



SOME ETHICAL GAINS 

chinery of industry and cause a score of ills while at- 
tempting the removal of one. 

When a health law is challenged in the courts as 
unconstitutional on the ground that it arbitrarily in- 
terferes with personal liberty and private property 
without due process of law, the courts must be able 
to see that it has at least in fact some relation to the 
public health, that the public health is the end actually 
aimed at, and that it is appropriate and adapted to 
that end. This we have not been able to see in this 
law, and we must, therefore, pronounce it unconsti- 
tutional and void. In reaching this conclusion we 
have not been unmindful that the power which courts 
possess to condemn legislative acts which are in con- 
flict with the supreme law should be exercised with 
great caution and even with reluctance. But as said 
by Chancellor Kent (i Com. 450) : "It is only by 
the free exercise of this power that courts of justice 
are enabled to repel assaults and to protect every 
part of the government and every member of the 
community from undue and destructive innovations 
upon their charter rights." 

The order should be affirmed. 

All concur. 

Order affirmed. 



324 



APPENDIX V 



PURE FOOD BILL 



(In the Senate of the United States. January 21, 1904.) 

(Read tii'ice and referred to the Committee on 

Manufactures.) 

AN ACT FOR PREVENTING THE ADULTERATION OR MIS- 
BRANDING OF FOODS OR DRUGS, AND FOR REGULAT- 
ING TRAFFIC THEREIN, AND FOR ALL OTHER 
PURPOSES. 

Be if enacted by the Senate and House of Repre- 
sentatives of the United States of America in Con- 
gress assembled, That for the purpose of protecting 
the commerce in food products and drugs between 
the several states and in the District of Cokinibia 
and the territories of the United States and with 

foreign countries the Secretary of 
Changes Bureau Agriculture shall organize the bu- 
of Chemistry to reau of chemistry of the Depart- 
Bureauof „-,gnt of Agriculture into a bureau 

CJiemistry and ^ ^^ chemistry and foods, which shall 
With'insZ'ion have the direction of the chemical 
of Food and work of the present bureau of 

Drug Products, chemistry and of the chemical work 

of the other executive departments 

whose respective heads may apply to the Secretary 

of Agriculture for such collaboration, and which 

shall also be charged wdth the inspection of food and 

32s 



SOME ETHICAL GAINS 

drug products, as hereinafter provided in this act. 
The Secretary of Agriculture shall make necessary 
rules and regulations for carrying out the provisions 
To Procure and '^^ ^^^^ ^^^' under which the director 
Analyze Sam- of the bureau of chemistry and 
pies of Foods foods shall procure from time to 
and Drugs. time, or cause to be procured, and 

analyzed, or cause to be analyzed or examined, 
chemically, microscopically, or otherwise, samples 
of foods and drugs offered for sale in original un- 
broken packages in the District of Columbia, in any 
territory, or in any state other than that in which 
they shall have been respectively manufactured or 
produced, or from a foreign country, or intended 
for export to a foreign country. The Secretary of 
Agriculture is hereby authorized to employ such 
chemists, inspectors, clerks, laborers, and other em- 
ployees as may be necessary to carry out the pro- 
visions of this act and to make such publication of 
the results of the examinations and analyses as he 
deems proper. 

Sec. 2. That the introduction into any state or 

territory or the District of Columbia from any other 

state or territory or the District of 

Prohibits Im- Columbia, or from any foreign 

portatwnot country, or shipment to any foreign 

Food or Drugs . . , . , , 

Adulterated or Country of any article of food or 
Misbranded. drugs which is adulterated or mis- 

branded, within the meaning of this 
act, is hereby prohibited ; and any person who shall 
ship or deliver for shipment from any state or ter- 
ritory or the District of Columbia to any other state 
326 



APPENDIX V 

or territory or the District of Columbia, or to a 
foreign country, or who shall receive in any state 
or territory or the District of Columbia from any 
other state or territory or the District of Columbia, 
or foreign country, or who, having received, shall 
deliver, in original unbroken packages, for pay or 
otherwise, or offer to deliver to any other person, 
any such article so adulterated or misbranded with- 
in the meaning of this act, or any person who shall 
sell or offer for sale in the District of Columbia or 
the territories of the United States such adulterated, 
mixed, misbranded, or imitated foods or drugs, or 
export or offer to export the same to any foreign 
country, shall be guilty of a misdemeanor, and for 

such offense be fined not exceeding 
olZer^"'' two hundred dollars for the first 

offense and for each subsequent 
offense not exceeding three hundred dollars or be 
imprisoned not exceeding one year, or both, in the 
discretion of the court: Provided, nevertheless. That 
no article shall be deemed misbranded or adulterated 
within the provisions of this act when intended for 
export to any foreign country and prepared or 
packed according to the specifications or directions 
of the foreign purchaser when no substance is used 
in the preparation or packing thereof in conflict 
with the laws of the foreign country to which said 
article is intended to be shipped ; but if said article 
shall be in fact sold or offered for sale for domestic 
use or consumption, then this proviso shall not ex- 
empt said article from the operation of all the other 
provisions of this act. 

327 



SOME ETHICAL GAINS 

Sec. 3. That the director of the bureau of chem- 
istr}^ and foods shall make, or cause to be made, 

under rules and regulations to be 
Prosecution for -u 1 u ^i c i. r a 

y I .■ prescribed by the Secretary of Ag- 

riculture, examinations of speci- 
mens of foods and drugs offered for sale in original 
unbroken packages in the District of Columbia, in 
any territory or in any state other than that in which 
they shall have been respectively manufactured or 
produced, or from any foreign country, or intended 
for shipment to any foreign country, which may be 
collected from time to time in various parts of the 
country. If it shall appear from any such examina- 
tion that any of the provisions of this act have been 
violated, the Secretary of Agriculture shall at once 
certify the facts to the proper United States district 
attorney, with a copy of the results of the analysis, 
duly authenticated by the analyst under oath. 

Sec. 4. That it shall be the duty of every district 
attorney to whom the Secretary of Agriculture shall 
report any violation of this act to cause proceedings 
to be commenced and prosecuted without delay for 
the fines and penalties in such case provided. 

DEFINITIONS 

Sec. 5. That the term "drug," as used in this act, 
shall include all medicines and preparations recog- 
nized in the United States Pharma- 

Definitions. • r • i. 1 i. 1 

copoeia for internal or external use. 

The term "food," as used herein, shall include all 
articles used for food, drink, confectionery, or con- 
diment by man or domestic animals, whether simple, 
328 



APPENDIX V 

mixed, or compound. The term "misbrandcd," as 
used herein, shall apply to all drugs, or articles of 
food, or articles which enter into the composition of 
food, the package or label of which shall bear anv 
statement regarding the ingredients or substances 
contained in such article, which statement shall be 
false or misleading in any particular, and to any 
food or drug product which is falsely branded as 
to the state, territory, or country in which it is manu- 
factured or produced. 

ADULTERATIONS 

Sec. 6. That for the purposes of this act an ar- 
ticle shall be deemed to be adulterated — 

In case of drugs : 

First. If when a drug is sold under or by a name 
recognized in the United States Pharmacopoeia, 

it differs from the standard of 

Adulterations in . .\ i-,. -4. i 

strength, quality, or purity, as de- 
termined by the test laid down in 
the United States Pharmacopoeia official at the time 
of the investigation. 

Second. If its strength or purity fall below the 
professed standard under which it is sold. 

Third. If it be an imitation of or olYered for sale 
under the name of another article. 
In the case of confectionery : 
If it contain terra alba, barytes, talc, chrome 
yellow, or other mineral substances 
Adulterations in ^^ poisonous colors or flavors, or 
Confectionery . . ,. , , . • i ^ 

other ingredients deleterious or det- 
rimental to health. 
In the case of food : 

329 



SOME ETHICAL GAINS 

First. If any substance or substances has or 

have been mixed and packed with it 
Adulterations in ^ j i 

r, , so as to reduce or lower so as to 

roods. 

thereby injuriously affect its quality 

or strength. 

Second. If any substance or substances has or 
have been substituted wholly or in part for the ar- 
ticle. 

Third. If any valuable constituent of the article 
has been wholly or in part abstracted. 

Fourth. If it be an imitation of or offered for 
sale under the distinctive name of another article. 

Fifth. If it be mixed, colored, powdered, or 
stained in a manner whereby damage or inferiority 
is concealed. 

Sixth. If it contain any added poisonous ingre- 
dient which may render such article injurious to 
health. 

Seventh. If it be labeled or branded so as to de- 
ceive or mislead the purchaser, or purport to be a 
foreign product when not so. 

Eighth. If it consists in whole or in part of a 
filthy, decomposed, or putrid animal or vegetable 
substance, or any portion of an animal unfit for 
food, whether manufactured or not, or if it is the 
product of a diseased animal, or one that has died 
otherwise than by slaughter : Provided, That an ar- 
ticle of food which does not contain any added poi- 
sonous or deleterious ingredients shall not be 
deemed to be adulterated in the following cases : 

First. In the case of mixtures or compounds 
which may be now or from time to time hereafter 
330 



APPENDIX V 

known as articles of food, under their own dis- 
tinctive names, and not included in definition fourth 
of this section. Second. In the 
Articles La- ^^^^ o^ articles labeled, branded, or 

belcd, Branded tagged SO as to plainly indicate that 
or Tagged. they are mixtures, compounds, com- 

binations, imitations, or blends: 
Provided, That the same shall be labeled, branded, 
or tagged so as to show the character and constitu- 
ents thereof: And provided further, That nothing 
in this act shall be construed as requiring or com- 
pelling proprietors or manufacturers of proprietary 
foods which contain no unwholesome ingredient to 
disclose their trade formulas, except in so far as the 
provisions of this act may require to secure freedom 
from adulteration or imitation: Provided further, 
That no dealer shall be convicted under the provi- 
sions of this act when he is able to prove a written 
guaranty of purity, in a form ap- 
Guaranty from ^^^^^ ^ ^^^ Secretary of Agri- 
Manufacturer. ^ -^ ,1 

culture as published in his rules and 

regulations, signed by the manufacturer or the party 
or parties from whom he purchased said articles : 
Provided also. That said guarantor or guarantors 
reside within the jurisdiction of the United States. 
Said guaranty shall contain the full name and ad- 
dress of the party or parties making the sale to the 
dealer, and said party or parties shall be amenable 
to the prosecutions, fines, and other penalties which 
would attach in due course to the dealer under the 
provisions of this act : Provided, That when in the 



SOME ETHICAL GAINS 

preparation of food products for shipment they are 

preserved by an external application 
Preservatives. ^^ ■, • i ..u ^ ^.u 

applied m such manner that the pre- 
servative is necessarily removed mechanically or by 
maceration in water or otherwise, the provisions of 
this act shall be construed as applying only when 
said products are ready for consumption. 

Sec. 7. That it shall be the duty of the Secretary 
of Agriculture to fix standards of food products 

when advisable for the guidance of 
Standards of ^^^ ^^^j^j^ charged with the ad- 

Food Products. . . . . ° , , , ^ 

mmistration of food laws and for 

the information of the courts, and to determine the 
wholesomeness or unwholesomeness of preserva- 
tives and other substances which are or may be 
added to foods, and to aid him in reaching just de- 
cisions in such matters he is authorized to call upon 
the committee on food standards of the Association 
of Official Agricultural Chemists, and such other 
experts as he may deem necessary. 

Sec. 8. That every person who manufactures or 
produces for shipment and delivers for transporta- 
tion within the District of Columbia or any territory, 
or who manufactures or produces for shipment or 
delivers for transportation from any state, terri- 
tory or the District of Columbia, to any other state, 
territory, or the District of Columbia, or to any 
foreign country, any drug or article of food, and 
every person who exposes for sale or delivers to a 
purchaser in the District of Columbia or any terri- 
tory any drug or article of food manufactured or 
produced within said District of Coltmibia or any 
332 



APPENDIX V 

territory, or who exposes for sale or delivers for 
shipment any drug or article of food received from 
a state, territory, or the District of Columbia other 
than the state, territory, or the District of Columbia 
in which he exposes for sale or delivers such drup 
or article of food, or from any foreign country, shall 
furnish within business hours and upon tender and 
full payment of the selling price a 
Manufacturer, sample of such drugs or article of 

,-,, . ^ ,, , food to any person duly authorized 
shipper Must , , r- , , . , 

Sell Samples. ^Y the Secretary of Agriculture to 
receive the same, and who shall 
apply to such manufacturer, producer, or vender, or 
person delivering to a purchaser, such drug or arti- 
cle of food for such sample for such use in sufficient 
quantity for the analysis of any such article or ar- 
ticles in his possession. 

Sec. 9. That any manufacturer, producer, or 
dealer who refuses to comply, upon demand, with 

the requirements of section eight of 
Penalty for Re- ^^^-^ ^^^ ^^^^jj ^^ jj^^ ^^ ^ ^^i,^!^. 
fusal to Sell , ' . . , ,, 

Samples meanor, and upon conviction snail 

be fined not exceeding one hundred 
dollars, or imprisonment not exceeding one hundred 
days, or both. And any person found guilty of 
manufacturing or offering for sale, or selling, an 
adulterated, impure, or misbranded article of food 
or drug in violation of the provisions of this act 
shall be adjudged to pay, in addition to the penal- 
ties hereinbefore provided for, all the necessary 
costs and expenses incurred in inspecting and 
analyzing such adulterated articles which said per- 
333 



SOME ETHICAL GAINS 

son may have been found guilty of manufacturing, 
selling or offering for sale. 

Sec. lo. That this act shall not be construed to 

interfere with commerce wholly internal in any 

state, nor with the exercise of their 

Act Does Not police powers by the several states ; 

Interfere With b^t foQ^s and drugs fully comply- 

„., ,, r , , ing with all the provisions of this 
Wholly Internal , „ , . . , . , , 

in any State. ^^^ ^"^'^ "°^ "^ mterfered with by 

the authorities of the several states 
when transported from one state to another so long 
as they remain in original unbroken packages, ex- 
cept as may be otherwise provided by statutes of the 
United States. 

Sec. II. That any article of food or drug that is 
adulterated or misbranded within the meaning of this 

Act, and is transported or being 
Condemnation , ,ir c-. . j. 

, ^ , transported irom one State to an- 

of Goods. ^ 

other for sale, or if it be sold or 

offered for sale in the District of Columbia and the 
territories of the United States, or if it be imported 
from a foreign country for sale, or if intended for 
export to a foreign country, shall be liable to be pro- 
ceeded against in any district court of the United 
States, within the district where the same is found 
and seized for confiscation, by a process of libel for 
condemnation. And if such article is condemned as 
being adulterated or misbranded, within the meaning 
of this act, the same shall be disposed of as the said 
court may direct, and the proceeds thereof, if sold, 
less the legal costs and charges, shall be paid into the 
Treasury of the United States, but such goods shall 
334 



APPENDIX V 

not be sold in any state contrary to the laws of that 
state. The proceedings of such Hbcl cases shall con- 
form as near as may be to proceedings in adinirally, 
except that either party may demand trial by jury of 
any issue of fact joined in such case; and all such 
proceedings shall be at the suit of and in the name of 
the United States. 

Sec. 12. That the Secretary of Agriculture is 
authorized to investigate the character and extent of 
the adulteration of foods, drugs and 
Authority to liquors, and whenever he has reason 

Investigate Or- ^q believe that articles are being ini- 
iginal Packages ■ i r r ■ . ■ " i • i 

,75 • • ported from foreign countries \v uch 

by Fer mission * ^ 

of Secretary of by reason of such adulteration arc 
Treasury. dangerous to the health of the 

people of the United States, or of 
kinds which are forbidden entry into or forbidden to 
be sold or restricted in sale in the countries in which 
they are made or from which they are exported, or 
which shall be falsely labeled in any respect either 
by the omission of the name of any added ingredient 
or otherwise, or in regard to the place of manufac- 
ture or the contents of the package, shall make a re- 
quest upon the Secretary of the Treasury for samples 
from original packages of such articles for inspection 
and analysis; and the Secretary of the Treasury is 
hereby authorized to open such original packages and 
deliver specimens to the Secretary of Agriculture for 
the purpose mentioned, giving due notice to the 
owner or consignee of such articles, who may be 
present and have the right to introduce testimony; 
335 



SOME ETHICAL GAINS 

and the Secretary of the Treasury shall refuse deliv- 
ery to the consignee of any of such 
Delivery of goods which the Secretary of Agri- 

Goods to Con- culture reports to him have been in- 

signee ay e spected and analyzed and found to 
Kef used by o ec- 

retaryofthe ^^ dangerous to health, or of kinds 

Treasury. which are forbidden entry into or 

forbidden to be sold or restricted in 
sale in the countries in which they are made or from 
which they are exported, or which shall be falsely 
labeled in any respect either by the omission of the 
name of any added ingredient or otherwise, or in re- 
gard to the place of manufacture or the contents of 
the package. 

Sec. 13. This act shall be in force and effect from 
and after the first day of September, Anno Domini 
nineteen hundred and four. 

Passed the House of Representatives January 19, 
1904. 

Attest: A. McDowell, Clerk. 

This bill failed to pass the Senate both in 1904 and 
1905. 



336 



INDEX 



Addams, Jane, VI, 40. 

Adulteration of foods, 210-21 1, 
222, 225, 230, 325 (Appendix 
V). 

Alabama, child labor in, 35; new 
statute in, 37; nightwork in, 
78; illiterate children in, 86, 
89; age limit in, 91; no fac- 
tory inspectors in, 159. 

Arkansas, 89. 

Atkins vs. the State, 128. 

Attendance agents, women as, 
177- 

Australian Federation, 198. 

Boston, 8, 12, 14, 185-186. 
Buffalo, 12, 14. 

Bureau of Charities, Chicago, 40. 
Bureau of Labor (U. S.), 99, 
105. 

California, 215, 81-89. 
Cambridge, Mass., 23. 
Canton Cotton Mill vs. Edwards, 

256. 
Census (U. S.), 70, 73, 81, 100, 

197. 
Chicago, V, VI, 21, 32, 39-40, 

SO, 58, 60, 72, 106, 142-144, 

179-180, 184, 215, 217, 219, 

254- 
Children's Protective Alliance in 

New Jersey, 54. 
Christmas cruelties, 20, 30-33. 
Colorado, 106, 134, 148, 152, 161- 

162, 169, 190-191, 193-194, 198- 

199. 
Commission for Children (U. 

S.), 99-104. 



Committee on Relations of Em- 
ployer and Employee, 79-80. 

Compulsory Education, in .\lton, 
111., 51; in Chicago, 58, 60, 
184; in New York and Penn- 
sylvania, 7i; in Massachusetts, 
86; states having none, 89- 
90; relation to child labor law, 
96, 238. 

Congestion of population, 109. 

Constitution of the United States, 
143. 146, 147-M8, iS^->S3. 158, 
163, 280 (Appendix III). 

Consumers' League seeks leisure 
for clerks, 106; advocates early 
closing, lis; inspector for, 
120; improvement achieved by, 
126; intervention by, 136, 202, 
221, 243. 



Delaware, child labor law, 3o; 

nightwork, 91; nine hours 

day, 134. 
Denver, women vote for all 

officials, 186-187, 190; county 

judge of, 192; voting mothers 

of, 193-I94- 
Department of Agriculture (U. 

S.), 99, '03- 
Department of Education, 99. 
Dependent families, 41, 49-50, 

52, 249; girl, 75, 110; fathers, 

13; orphans, 76; widows, 63, 

66. 
Disabled fathers, 13, 3S. 39; 

parent, 35, 39, 246; relative, 

35-39- 
Divorce Reform League, 206. 



337 



INDEX 



Eliot, President Charles W., of 
Harvard University, 23, 

Employers' Liability, 102, 256 
(Appendix I). 

Factory acts, 89. 

Factory inspector, V, 6; none in 
several states, 36-38, 40; vary- 
ing efficiency of, 56, 60, 64, 
89, 97, 139; women as, 177, 
219, 225-226, 237, 239, 244, 
246. 

Florida, 88. 

French Canadian children, 85. 

General Federation of Women's 
Clubs, 106. 

Georgia, no child labor law, 33- 
34, 38; Northern corporations 
in, 61; eleven hours day, 63; 
chilldren in manufacture, 70; 
rank in scale of states, 86; 
illiteracy in, 82-89; age limit, 
91; competition with New Eng- 
land, 107, 134-13S, 166; women 
excluded from public life, 193; 
supreme court decision in 
child labor case, 256. 

Grover Cleveland, 106. 

Hamilton Manufacturing Co. 

(120 Mass., 283), 154, 136. 
Helena, Montana, 219-220. 
Holden vs. Hardy, 128, 137, 145, 

158, 160-161, 164, 233, 254, 

280 (Appendix III). 
Hull-House, V, VI, 40. 

Idaho, women vote in, 198. 

Illinois, V; child labor law of 
1903, 30; end of working day, 
32; age limit, 33; children in 
mines, 38; laws of 1891, 1893, 
1897 and 1903, 39; scholar- 
ships, 41; Alton, 43; children 
imported for work, 47; ideals 
of immigrants, 58-61; night- 



work prohibited, 63; enforce- 
ment of child labor laws, yy; 
eight hours day, 80; position 
in scale of states, 85-88; Su- 
preme Court, 128; working 
week 48 hours, 134; decision 
in case Ritchie vs. the People, 
139. 147. 142-144; strikes in, 
14s, 158-160, 1SS-156, 158-159. 
160-162; girl in trade union, 
181, 200, 219; Ritchie vs. the 
People, 259. 

Illiterate children, 4, 11, 36, 47, 
54, 59; in Pennsylvania, 73; 
imported by relatives, 75; in 
Chicago, yy; in census of 1900, 
81-89, 100. 

Immigrants, 6, 11; false ideals of 
parents, 58, 61; Welsh miner's 
experience, 69; Russian girl 
in sweatshop, 75; import il- 
literate children, 75; women 
as inspectors of, 177; in colo- 
nies, 183; as purchasers, 214- 
215. 

In re Jacobs, 230-231, 233, 238, 
240-241, 244, 246-247, 253-255, 
306 (Appendix IV). 

Indiana, 85. 

Infant mortality, 4, loo-ioi. 

Institutions for children, 7; rec- 
ords of, 17; erroneously called 
private, 64; dependents and 
delinquents together, 102; com- 
petition with manufacturers 
in sewing trades, 124; the 
sweating-system in, 130; so- 
called reformatory, 205. 

Inter-State Commerce Commis- 
sion, 67. 

Iowa, 93. 

Italian, child immigrants, 11; im- 
portation of children, 76; in 
Massachusetts, 86; girl in Chi- 
cago school, 180; as purchas- 
ers, 214; olive oil, 214, 216; 
sewing in tenement, 237. 



338 



INDEX 



Juvenile court, observations re- 
garding messenger service, 17; 
insufficient number of, 102, 
189. 

Kansas, 39, 40, 41. 
Kentucky, 37. 

Label of trade union, cigar- 
makers, 126; of cracker- 
bakers, 182; tailors, 220, 240- 
243- 

Licenses for tenement work, 8, 
237-238. 

Lochner vs. New York, 128, 159, 
233, 254-255. 

Louisiana, child labor in, 36; age 
limit, 36; rank in scale of 
states, 89, 91; child labor bill 
introduced, 93. 

London School Board, 176, 185, 



Maine, 91, 103. 

Maryland, 88. 

Massachusetts, ethical standards, 
8, 61, 67; rank in scale of 
states, 70; child labor law age 
limit, 78; hours of labor, 80; 
illiterate children, 82-89; 
needle trades in, 119; competi- 
tion with Georgia, 135; powers 
of legislature, 136, 149; protec- 
tion of women engaged in 
commerce, 137; strikes in, 145; 
constitution of, 149-150, 155, 
164; educational qualification 
for voting, 173. 

Mercantile inspection, 27, 169, 
201-202. 

Michigan, 68, 82-85. 

Mississippi, 89, 134. 

Missouri, 36, 39, 161. 

Montana, 134. 

Municipal milk supply, 224. 

National Child Labor Committee, 
106. 



National Congress of Mothcri. 
iu6. 

National Consumers' League, rec- 
ognition of clerks' right to lc|. 
sure, 106; advocates Saturday 
half-holiday, 115; insiKrctor for, 
120; achievement of, 126; de- 
mands leisure for young work- 
ers, 136; changing industrial 
conditions affecting working 
women and children, 202; en- 
deavor to form body of organ- 
ized purchasers, 221; label on 
women's and children's white 
muslin underwear, 243. 

National Educational Association, 
106. 

Nebraska, 85, 91, 148, 152, 160. 

Needle-trades, 8, 130, 240, 217- 
218, 231, 237. 

Nevada, 81. 

New Hampshire, 91, 82-84. 

New Jersey, 37; glass-bottle in- 
dustry in, 52; night work in, 
S3; imported boys for glass 
works, 54; thrift urged for 
children, 63; children in man- 
ufacture, 70; illiterate children, 
82-88; rank in scale of states, 
82; hours of labor, 134; repeal 
of Fifty-Five Hours law, 154, 
170. 

New York, V; infant mortality 
in, 4; begging infants in, s; 
kindergarten children working 
in tenements, 6; subsidized in- 
stitutions, 7; child labor law 
of 1903, 11; Child Labor Com- 
mittee, 12; penal code affecting 
telegraph boys, 18; corpora- 
tions having branches in the 
South, 61; needle-trades subsi- 
dized, 64; comparison with 
children in manufacture in 
Pennsylvania, 70-73; illiterate 
children in, 82-88; sweating 
system, m; Court of Appeals 
decision People vs. Orange Co. 



339 



INDEX 



Road Construction Co., 128 
hours of labor of children, 143 
137-138, 144, 160, 169; insuffi 
cient schools, 187-188; Found 
ling Asylum, 194; clerks insuf 
ficiently protected, 200-202 
consumptive tenement-workerS; 
213, 215, 231, 233, 237, 244 
245, 253; in re Jacobs, 306 
(Appendix IV.). 

New Zealand, 196-198. 

Night inspections, 44, 96. 

Night work, of newsboys, 15; of 
telegraph and messenger boys, 
20; of children in retail trade, 
30-33; in manufacture, 34-36 
and 45 et seq.; in glass works, 
S3 et seq., 71, 73; in Pennsyl- 
vania and Rhode Island, 78; 
in Illinois, 139, 143-144; in 
Alabama, 169; in New Jersey, 
170. 

North Carolina, child labor law 
of 1903, 35-37; children in coal 
mines, 39; in manufacture, 70; 
rank in the scale of states, 82- 
89; illiterate children, 82-89; 
age limit, 91; age of consent, 
194- 

North Dakota, 91. 

Nurses' Settlement, V. 

Ohio, 25, 85, 82-89. 

Oregon, 85. 

Orphans in the glass industry, 
43; maintenance of, 66; a so- 
cial and industrial phenoml- 
enon, 67; imported to work, 
76; need of a Commission for 
Children, 100-102. 

Parasite trades, 64-65. 

Pauper, 49, 50, 52, 217, 253. 

Pennsylvania, 56, 63; children in 
manufacture, 70-78; illiterate 
children, 80-89 ; miners in, 
IS9. 

Pensions, 48, loi. 



People vs. the Orange Co. Road 

Construction Co., 128. 
Police matrons, women as, 177. 
Probation officers, women as, 

177. 
Portuguese children, 86. 
Poverty, 42, 50 et seq., 54, 58, 

98, 220, 253. 
Public Education Association of 

New York City, 173. 
Pure Food bill, 325 (Appendix 

v.). 

Registration of births, 100. 
Retail Dealers' Association of 

New York City,' 169, 201. 
Ritchie vs. the People, 128, 143, 

145, 147, 155, 254-255, 259 

(Appendix II.). 
Rhode Island, 70, 78, 91. 
Rochester, N. Y., municipal milk 

supply, 224. 
Russian children, 11, 74, 76, 86. 

Sanitary inspectors, women as, 
177. 

Scholarships for working chil- 
dren, 40-42, 50, 52. 

School nurses, 177, 188. 

South Australia, women vote in, 
198. 

South Carolina, 70, 87, 89; age 
of consent in, 194, 216. 

Speed, 43, 121-124, 159. 

Strikes, 144, 168, 171, 182. 

Sweating system, 159, 166, 210, 
212, 218, 229, 231, 235, 240, 
242, 250-251. 

Syrian children, 186. 

Texas, 36-37. 

Thrift, 60, 63. 

Trade agreements, 114, 127, 132, 

134, 163, 165-167. 
Trade unions, 53, 55, 90, 117 

126, 133, 165-167, 181, 198, 

201, 216, 220-221, 238, 240, 

242-245. 



340 



INDEX 



Traveling libraries in Wyoming, 
197. 



United States, 8, 33, 46, 60, 68, 
186, 21S, 253. 

United States Census, 70, 81-85, 

197. 
United States Congress, 132, 

206, 32s (Appendix V). 
United States Commission for 

Children, 99-103. 
United States P'ish Commission, 

101-102, 129-130. 
United States Supreme Court, 

106, 127-128, 132, 137, 141, 

145, 148, 150-152, 155-157, 159- 

164, 167, 233-234, 254, 280 

(Appendix III). 



Utah, 85, 146, 149-153, 154, 157, 
161, 164, 198. 

Vermont, 134. 

N'irginia, 35, 37, 82-85, 89, 91. 

Washington, 85, 160-161. 

West N'irginia, 36, 88, 91. 

Widows, 13, 35, 63, 66, 243, 248. 

Wisconsin, 27, 70. 

Women, as attendance agents, 
probation officers, police 
matrons, 176; as inspectors of 
immigrants, 177; as sanitary 
inspectors, tenement inspec- 
tors, 177; as army nurses and 
school nurses, 177. 

Women's Trade Union League, 
198. 

Wyoming, 196-198. 



341 



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